Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D. C. 20554 ) In the Matter of Implementation of Section 255 of the Telecommunications Act of 1996 [1] Access to Telecommunications Services, Telecommunications Equipment, and Customer Premises Equipment By Persons with Disabilities WT Docket No. 96- 198 COMMENTS OF THE INFORMATION TECHNOLOGY INDUSTRY COUNCIL Fiona J. Branton Director, Government Relations and Regulatory Counsel Information Technology Industry CounciI 1250 Eye Street, N. W., Suite 200 Washington, D. C. 20005 202- 626- 5751 Colleen Boothby Janine Goodman Levine, Blaszak, Block & Boothby, LLP 2001 L Street, NW, Suite 900 Washington, D. C. 20036 202- 857- 2550 SUMMARY The IT marketplace differs profoundly from the traditional telephony markets that the FCC has regulated for over six decades: it is driven by robust competition, with all of the technological innovation and aggressive downward pricing pressure that competition brings. And it is a “plug and play” environment in which customers control the features and functions they obtain, choosing from a dizzying array of products to assemble IT systems tailored to their unique needs. No regulatory intervention has been needed to exploit technological advances, expand consumer choice, and satisfy atypical consumer demand with specialized products from expert manufacturers in niche markets. The Commission’s Section 255 rules should harness, not hamper, this marketplace dynamic. Accordingly, the Commission should incorporate the following refinements in its rules adopting Section 255. First, the Commission should establish a bright line test for multi- use equipment to identify those telecommunications functions that are subject to Section 255. Equipment used exclusively in the provision of information services and software bundled with customer premises equipment is beyond the scope of Section 255. Second, the Commission’s definition of “manufacturer” should include both importers and modifiers of equipment. Third, the Commission should treat the Access Board’s functionality list as relevant but not determinative of accessibility, and should find manufacturers to be Section 255 compliant where a product family includes accessibility solutions or a solution is generally available in the marketplace. The rules should explicitly recognize that “compatibility” is the measure of accessibility for IT products. The Commission properly includes practical economic considerations in its test of “readily achievable” approach and should further refine the standard to (i) accurately identify the resources available to a manufacturing entity; (ii) consider a manufacturer’s ability to recover costs; and (iii) consider the effect of “fundamental alterations” on IT equipment, the availability of equipment on a marketwide basis, and the product cycle for equipment. ITI supports the Commission’s efforts to establish efficient enforcement mechanisms, which must include a requirement that potential claimants contact manufacturers to resolve accessibility problems, allow manufacturers adequate time to respond to accessibility complaints, provide protection for confidential information, and impose reasonable time limits for the filing of informal complaints. The Commission also should acknowledge that Sections 207 or 208 do not authorize the recovery of damages from non- carriers. Finally, ITI continues to support the creation of an information depository but such a depository must not be a legally binding obligation for manufacturers. The Commission should abandon its proposals to rate manufacturers according to dispute resolution outcomes and to establish a “seal” of compliance since these would produce inequitable and misleading information. Finally, the Commission need not establish a peer review process since such a process would be duplicative of the standards- setting processes that the IT industry already has successfully developed and that can accommodate Section 255 issues. TABLE OF CONTENTS INTRODUCTION I. THE COMMISSION’S RULES SHOULD PRESERVE THE MARKETPLACE DYNAMIC THAT HAS PRODUCED A RICH ARRAY OF SPECIALIZED EQUIPMENT FOR PEOPLE WITH DISABILITIES II. SCOPE OF SECTION 255 A. The Commission Should Adopt Its Tentative Conclusion That Section 255 Does Not Apply To Equipment Used Only With Information Services 1. Section 255 Does Not Apply To Information Services 2. The Commission Should Establish A “Bright Line” Test For Multi- Use Equipment 3. The Commission Has No Authority To Extend Section 255 To Software Bundled With CPE B. Definition Of “Manufacturer” III. STATUTORY REQUIREMENTS A. Accessibility 1. The Access Board’s Function List Can Be Relevant But Not Determinative Of Liability Under Section 255 . . . . . . . . . . . . . 15 2. All Products Available In The Marketplace Are Relevant To An Accessibility Assessment B. Compatibility 1. In The IT Industry, Compatibility Produces Accessibility 2. Creation Of A List Of “Commonly Used” Equipment Would Inhibit Manufacturer Flexibility And Innovation And Increase costs 3. Hardware Complies With Section 255 If It Is Compatible With Software That Enables Accessibility C. The “Readily Achievable” Standard 1. Resources Available To The Manufacturing Unit 2. “Fundamental Alteration” In Equipment 3. Manufacturer Ability To Recover Costs and Affordability For Consumers 4. Availability Of Equipment Marketwide 5. Product Life Cycle “Compatibility” As A Factor In Assessing Ready Achievability.. ENFORCEMENT MECHANISMS Direct Contact With The Equipment Manufacturer As A Precondition To An FCC Complaint Fast Track Response Time of Five Business Days Confidentiality Rules Applicable To Section 255 Complaints.. Deadline For Formal Dispute Resolution Product Families And Marketplace Availability As Complete Defenses To Section 255 Complaints Damages In Complaints Against Non- Carriers Miscellaneous Implementation Issues 1. Establishment Of A Clearinghouse 2. Information On Manufacturer Performance 3. Peer Review Processes CONCLUSION Before the FEDERAL COMMUNICATIONS COMMISSION Washington D. C. 20554 In the Matter of Implementation of Section 255 of the Telecommunications Act of 1996 Access to Telecommunications Services, Telecommunications Equipment, and Customer Premises Equipment By Persons with Disabilities WT Docket No. 96- 198 COMMENTS OF THE INFORMATION TECHNOLOGY INDUSTRY COUNCIL The Information Technology Industry Council (“ ITI”) files these comments in response to the Commission’s Notice of Proposed Rdemaking[1] (“ APRIM’) in the docket captioned above. INTRODUCTION ITI is the leading trade association for manufacturers and vendors of computers, computing devices, office equipment and information services, including information technology (“ IT”) equipment targeted to the needs of individuals with disabilities. ITI’s members have continually supported efforts to ensure that all consumers, including those with disabilities, benefit from the technological diversity and innovations that have resulted from robust competition in the IT marketplace. The IT marketplace differs profoundly from the traditional telephony markets that the FCC has regulated for over six decades. Unlike most telecommunications markets, the IT industry is driven by robust competition, with all of the technological innovation and aggressive downward pricing pressure that competition brings, There may be no other American industry as responsive to consumer demand, innovative in technology, and sensitive to shifts in costs and price. As a result, the IT industry regularly introduces new features and functions and service upgrades into the marketplace at increasingly lower prices. But the IT marketplace also differs fundamentally from traditional telecommunications markets in another way. Unlike the regimented, highly standardized telephony heritage of telecommunications markets, the IT marketplace is a “plug and play” environment in which customers control the features and functions they obtain, choosing from a dizzying array of products to assemble IT systems tailored to their unique needs. No regulatory intervention has been needed to exploit technological advances, expand consumer choice, and ensure that niche markets develop in response to atypical consumer demand. The essence of the IT marketplace dynamic is product diversity and customer control over system characteristics. Much of the equipment currently manufactured by ITI members does not constitute “telecommunications equipment” (“ TE”) or “customer premises equipment” (“ CPE”) within the meaning of Section 255. However, the rapid technological convergence of information technology products and traditional TE and CPE promises to produce over time a variety of IT products to which Section 255 guidelines may be relevant, at least with respect to some features and functions. Because of this growing convergence, ITI has participated in both the FCC and the Architectural and Transportation Barriers Compliance Board (“ Access Board”) proceedings regarding the implementation of Section 255. In both forums, ITI has pressed for the adoption of guidelines and regulations that will encourage, not discourage, the diversity and innovation that currently characterize IT markets. Congress passed the Telecommunications Act of 1996 [2] to “provide for a pro- competitive, deregulatory national policy framework designed to accelerate rapidly private sector deployment of advanced telecommunications and information technologies and services to all Americans by opening all telecommunications markets to competition.“ [3] To be consistent with this statutory objective, the Commission’s implementation of Section 255 must recognize the technological diversity of IT equipment and services markets and the wide variety of existing products that enhance the accessibility of information technologies to individuals with disabilities. The Commission’s rules should harness, rather than hamper, the powerful competitive forces and cooperative technical standards in IT markets that are already producing innovative technological solutions and applications for individuals with disabilities. Because of the pervasive and fundamental differences between traditional telephony products and markets and IT products and markets, certain of the rules proposed in the NPRM must be modified to reflect that the regulatory approach for traditional CPE and TE is not appropriate for IT equipment markets. If the Commission’s rules ignore the unique nature of IT products and markets, the rules will suppress the very marketplace dynamic that is producing the specialized, innovative products from which people with disabilities benefit most thereby placing the people that Congress intended to serve through Section 255 at a greater disadvantage than ever before I. THE COMMISSION’S RULES SHOULD PRESERVE THE MARKETPLACE DYNAMIC THAT HAS PRODUCED A RICH ARRAY OF SPECIALIZED EQUIPMENT FOR PEOPLE WITH DISABILITIES The information technology equipment market has evolved into a “plug and play” environment in which manufacturers produce a variety of modular software and hardware components that users purchase as building blocks to assemble into the configuration that best meets their needs. The “plug and play” approach focuses on the needs of the individual. It maximizes user flexibility to customize equipment configurations to meet preferences or unique needs while simultaneously allowing users to benefit from any scale economies resulting from product standardization. “Plug and play” also facilitates competitive entry by innovative producers of specialized equipment. Open interfaces allow all consumers to customize their systems through the purchase of specialized incremental additions that will “plug and play” with standard core components. Thus in a “plug and play” world, users have more control (and more options) with respect to their information technology needs and they benefit from more competitive pricing. Competitive “plug and play” IT markets have resulted in a highly differentiated array of technology choices for any individual system component. Users typically assemble an IT system tailored to meet their needs, choosing among a wide variety of hardware and software components, including modems, monitors, printers and software applications A “plug and play” approach is particularly well- suited to the needs of people with disabilities because it already assumes that there is no “standard” individual and that every consumer will assemble a customized system of equipment and services. The premise of “plug and play” is that all consumers, regardless of their physical or cognitive differences. are best served when they have the flexibility to design a system that meets their unique needs. The marketplace for accessibility solutions is no less vibrant than the market for products not specifically targeted toward accessibility. The result: options for people with disabilities are as diverse as those available to any purchaser of IT equipment. [4] A decade ago, accessibility solutions were focused primarily on improving keyboard control and modifying monitors to enhance screen readability. Now these solutions are typically provided in every computer, and the hundreds of manufacturers specializing in the production of assistive devices are instead focusing their efforts on developing more sophisticated solutions that will make some of the most advanced information technologies available to those with mobility, hearing, visual, and learning disabilites. For example, several manufacturers have created alternatives to the traditional keyboard. Devices controlled by tongue or eye movements or a “sip and puff” straw make computer technology accessible to those with spinal cord injuries and other neuromuscular diseases. The foot- operated mouse avoids the limitations associated with certain manual impairments. Voice recognition products and computer control systems have been designed to allow users with mobility impairments to answer a telephone, turn lights on and off or open and close doors and appliances. People who are vision- impaired may use any number of devices that provide for Braille translation, including items such as Braille word processors, scientific calculators, spell checkers, appointment calendars, and phone directories, as well as a virtual reality mouse which translates icons and menu bars into bumps and ridges. For those cases in which Braille is not the optimal solution or is even a disadvantage (e. g., people with loss of sensitivity in their fingers due to diabetes), manufacturers have developed various screen reader devices that translate printed information Into audible speech, including information from the Internet, books magazines, computer output, World Wide Web output, photocopies, and facsimiles. regardless of formatting or font size. More importantly. manufacturers of these specialized devices are continually working toward better, simpler solutions. Every computer has standard serial and parallel ports that make it possible for IT systems to work with accessibility products. Each year, various associations and organizations sponsor hundreds of conferences and events that specifically address and demonstrate technology for use by individuals with disabilities. [5] The result has been dramatic improvements in technologies, such as speech recognition and screen reader products. accompanied by an equally dramatic decline in cost. [6] In short, the IT marketplace has been responsive to accessibility concerns while the possibilities for better accessibility solutions have stimulated entry by numerous niche players dedicated to highly specialized areas of expertise. Competition among these providers has resulted in innovation and the accelerated development of marketplace solutions. To fulfill the statutory mandate with respect to individuals with disabilities, the FCC’s rules should reinforce, not discourage these marketplace trends. [7] II. SCOPE OF SECTION 255 A. The Commission Should Adopt Its Tentative Conclusion That Section 255 Does Not Apply To Equipment Used Only With Information Services Section 255 applies to “telecommunications equipment” or equipment used as “customer premises equipment.” [8] Telecommunications equipment is defined by the Act as “equipment other than CPE, used by a carrier to provide telecommunications services. [9] CPE is defined as “equipment employed on the premises of a person (other than a carrier) to originate, route, or terminate telecommunications [10] The Act defines “telecommunications” to mean “the transmission. .of information. .without change in the form or content of the information as sent and received. [11] As discussed in the following paragraphs, this definition excludes information or enhanced services.” Therefore, equipment used solely in connection with information or enhanced services, that is not also used to originate, route or terminate telecommunications within the meaning of the Act, is not subject to guidelines developed pursuant to Section 255. 1. Section 255 Does Not Apply To Information Services The APRM tentatively concludes that information services are beyond the scope of Section 255, but seeks comment on whether the Commission should create an exception for widely- used information services such as voice mail and e- mail. [12] The Commission should not give this approach any further consideration, as it would be inconsistent with the statutory interpretations and conclusions that the Commission has already articulated in numerous other dockets. Most recently in its Report to Congress. [13] the Commission affirmed that “telecommunications services” and “information services” are “mutually exclusive,” and that information service providers do not provide telecommunications and therefore are not subject to Title II regulation. [14] The Commission found that presumptively applying Title II constraints to information services and information services providers “could seriously curtail the regulatory freedom that the Commission concluded in Compufer II was important to the health and competitive development of the enhanced- services industry” and that such a presumption would be “inconsistent with the deregulatory and procompetitive goals of the 1996 Act. [15] In addition, the Commission voiced concern that “uncertainty about whether [it] would forbear from applying specific provisions could chill innovation.“ [16] Applying Section 255 to information services would fly in the face of these conclusions Moreover, there is no statutory support for doing so. Section 255 refers to telecommunications equipment, customer premises equipment, and telecommunications services. all terms defined in the 1996 Act and all of which clearly exclude information services or equipment used exclusively in conjunction with such services, There is no language in Section 255 or the legislative history for that section which suggests that Congress intended Section 255 to extend to information services Any application of Section 255 to information services or equipment used exclusively in the provision of such services would therefore be a clear violation of the statute. 2. The Commission Should Establish A “Bright Line” Test For Multi- Use Equipment The FCC proposes that “multi- use” equipment (ie., equipment used in connection with both telecommunications and information services) is covered by Section 255 only to the extent the equipment performs a telecommunications function. [17] IT1 strongly supports this conclusion The Commission’s proposed approach will not be useful, however. unless the Commission elaborates on its proposed standard. With the convergence of telecommunications and information technologies, more equipment will serve a “multi- use” function. It is therefore crucial that the Commission provide clear and unambiguous standards for distinguishing between those aspects of equipment that are subject to Section 255. and those that are not. In order to establish an enforceable “bright line” between telecommunications and non- telecommunications functions that manufacturers can implement as a practical matter, the FCC should explicitly identify the functions in IT appliances that constitute ‘felecommunicafions,” as defined by the Act. In this way, manufacturers will know at any given time the set of functions that must comply with Section 255 standards, which is critical to ensuring that the technological innovation and consumer responsiveness of IT markets are not stifled 3. The Commission Has No Authority To Extend Section 255 To Software Bundled With CPE The NORM tentatively concludes that, where a CPE manufacturer bundles software with products that serve a telecommunications function, and the software “detracts from or otherwise reduces the accessibility of the product.” the manufacturer should be “required to alter the software to cure the accessibility problem, to the extent such alteration is readily achievable. [18] Software sold with CPE, however, is beyond the reach of the Commission pursuant to the authority conferred by Section 255. The Commission’s proposal to use a joint sale of software and CPE as a justification for asserting FCC jurisdiction exceeds that authority. The NPRM correctly observes that the statutory definition of CPE, unlike the definition for telecommunications equipment, does not include an explicit reference to software. [19] The fact that Congress specifically included software in its definition of telecommunications equipment, but declined to include software in the definition of CPE, undercuts any statutory basis for the Notice’s attempt to extend the Commission’s authority to the software sold with CPE. In addition, the Nofice’s bundling proposal will not achieve its purpose. By proposing to make manufacturers liable for the accessibility features in software, the Nofice apparently assumes that equipment manufacturers have sufficient control over software features and functions to ensure compliance with Section 255. Manufacturers have no such control. Imposing accessibility requirements on manufacturers would therefore be both inequitable and ineffective. The Commission should therefore abandon the proposal in the Notice to make equipment manufacturers responsible for the accessibility defects in bundled software. B. Definition Of “Manufacturer” The N/ WA4 proposes to define a manufacturer as the “final assembler” of a product, reasoning that “every assembler has control over the components it uses. [20] In many cases, the “final assembler” of a product will no doubt be the entity in the best position to exert control over the accessibility of the final product, and should therefore qualify as the responsible party. As discussed in the paragraphs that follow, however, this approach will not adequately capture certain other likely scenarios, and in particular could fail to reach foreign manufacturers, many of whom are beyond the reach of the FCC’s enforcement powers. To address these situations, ITI urges the Commission to modify its proposed definition to include both importers and equipment modifiers as “manufacturers” for purposes of Section 255 The FCC properly observes that although Section 255 should apply to foreign manufacturers who offer equipment for sale in the United States, some foreign manufacturers may be beyond the reach of the enforcement capabilities of the Commission. [21] By making the importers of such equipment responsible for Section 255 compliance. the Commission can indirectly enforce foreign manufacturers’ compliance, because importers will be discouraged from importing non- compliant equipment. The Commission has already taken this approach in similar circumstances, For example, importers are responsible for compliance with certain equipment authorization standards in Part 2, Subpart J of the Commission’s Rules. The Commission should also extend compliance obligations to parties other than the “final assembler,” who modify the equipment before sale to the consumer. If such modifications degrade the accessibility of the product, the party performing the modification should be responsible for compliance with Section 255. Under these circumstances, the modifier, rather than the “final assembler,” controls the ultimate accessibility of the equipment. [22] Finally, in some cases, equipment may be marketed pursuant to a licensing agreement under which the entity whose brand appears on the product is not the final assembler, modifier. or importer of the equipment. In the interests of administrative convenience, the complainant should be permitted to seek contact with the brand owner in the first Instance. The ultimate liability of the brand owner, rather than the “final assembler” of the equipment, will be a function of the licensing agreement between the brand owner and the “final assembler.” Absent a countervailing provision in the licensing agreement, the “final assembler” alone should be liable and the brand owner’s obligations should be discharged once it identifies the “final assembler.” III. STATUTORY REQUIREMENTS A. Accessibilitv Section 255 requires that equipment be “designed, developed, and fabricated to be accessible to and usable by Individuals with disabilities, if readily achievable. [23] The Notice proposes to evaluate whether or not a manufacturer meets its “accessibility” obligations by, in part, considering the extent to which the manufacturer meets the Access Board’s list of input and output functions and the Board’s accompanying appendix 23 The Notice also proposes to take into account the accessibility features of other functionally similar products offered by the manufacturer [24] For the reasons discussed below, the Commission should clarify that while the Access Board’s factors may be relevant, they are not determinative of a manufacturer’s compliance obligations in an enforcement setting. In addition, the Commission should consider product families and the availability of solutions on a marketwide basis in determining whether a manufacturer has met its accessibility obligations. 1. The Access Board’s Function List Can Be Relevant But Not Determinative Of Liability Under Section 255 The interests of people with disabilities will be served best by an accessibility approach that encourages manufacturers to produce the widest possible variety of accessible equipment at the lowest possible price. The Commission’s rules should therefore encourage continued innovation and experimentation in equipment technologies and the production of less expensive alternatives, and should not limit people with disabilities to a choice of imperfect solutions that require all customers to pay more for functions they would not need or want. The Access Board’s function list is a relevant tool for assessing accessibility. The Commission should make clear, however, that, given the disparate needs of individuals with disabilities and the breadth of technical solutions available, compliance with every item on the Board’s list is not required for accessibility. The Board’s list specifies functions that may be useful individually but are not necessary as a group in order for a piece of equipment to be accessible to an individual with a particular disability or set of disabilities. But the more detailed the accessibility standard, the more complex equipment must be to comply, whether or not its complexities benefit individual people with particular disabilities. In addition some functions listed by the Board are of mutually exclusive utility, e. g., features that allow for operation without vision and output that allows the display of auditory information in a visual format. Simultaneous compliance with every item on the Board’s list would therefore require manufacturers to incorporate incompatible solutions which would introduce undue delay in the release of products; increase manufacturing costs; and ultimately, reduce the resources available for developing technological innovations that would benefit people with disabilities. A one- size- fits- all approach, even where readily achievable in theory, will also discourage the emergence and growth of niche players who have developed expertise in designing and manufacturing products targeted to particular disabilities and therefore are uniquely equipped, based on their experience, to produce the best technological solutions for a particular disability. [25] If manufacturers can produce only “fully loaded” versions of equipment, there will be little marketplace demand for equipment produced by these specialized manufacturers, even though their equipment may be a better technological alternative for the consumer The more flexible approach advocated by ITI is consistent with the approach adopted by the Commission in other proceedings. For example, in the hearing aid compatibility (“ HAC”) proceeding, the Commission reasoned that overly broad, universal HAC requirements would “restrict the freedom to design innovative telephones [26] that there existed inexpensive alternative portable devices to assist those with hearing disabilities, and that it was still unclear whether universal HAC requirements would address problems experienced by certain hearing impaired individuals. For these reasons, the Commission determined that “it [did] not appear that mandatory universal compatibility would serve the public interest. [27] Similarly, in a Notice of Proposed Rulemaking recently released by the Commission on Telecommunications Relay Services, the Commission indicated that it would not mandate Video Relay Interpreting (VRI) at this time on the grounds that VRI would “grow and develop more efficiently if providers are allowed to experiment with various VRI offerings on a trial basis, and to offer these services as a means of differentiating themselves from their competitors, until a cost- effective and practical VRI platform is developed. [28] The Commission further found that “[ mlandating the provision of VRI when it is still at an early stage of development may remove competitive incentives for the development of innovative and quality VRI offerings by TRS providers. [29] The Commission’s reasoning in both of these proceedings applies with equal force to accessibility standards for IT equipment. Manufacturers need the flexibility to develop and experiment with new technologies, with a focus on innovation and quality. in order to meet the needs of their customers with disabilities. Accordingly, the Commission should not “lock in” the Access Board’s function list as the measure of IT equrpment accessibility. [30] 2. All Products Available In The Marketplace Are Relevant To An Accessibility Assessment The Nofice observes that, in the context of defenses to an accessibility enforcement proceeding, it is reasonable for “an informed product- development decision” to take into account functionally similar and accessible products in the same product family [31] The availability of a functionally similar product within a product family should serve not only as a defense available to manufacturers after a formal complaint has been filed. but should also be incorporated into the definition of accessibility used by the Commission to evaluate accessibility at every procedural stage. In addition, the Commission should broaden its accessibility analysis to include a market- wide survey of available equipment. If the marketplace as a whole is already producing accessible equipment (i. e., accessible equivalent products are available from other manufacturers), then the Commission should find that producers of functionally similar equipment have met their statutory obligations. This practical, market- wide approach is best illustrated by analogy to the treatment of other products for which accessibility is crucial to people with disabilities. For example, although the technology exists for every car to include manual controls rather than brake or acceleration pedals, every vehicle is not required to include these features. Such an approach would make no practical sense because it would raise production costs require all purchasers to buy a feature that most will never use, and may not address the individual needs of all people who need an accessibility feature The solution also misdirects resources away from the development of better technological solutions for people with disabilities The critical issue is not whether every car has a particular accessibility feature installed regardless of the driver’s needs, but whether all drivers who need a particular accessibility feature can obtain a car with the relevant feature in the marketplace The same analysis applies to the equipment addressed by Section 255. The relevant inquiry is not whether every piece of information technology equipment contains an identical set of accessibility solutions but whether individuals who need particular accessibility features are able to get them in the marketplace. Thus, the Commission should conclude that manufacturers meet the Section 255 accessibility standard when they either (i) offer the requested accessibility solutions within a product family. or (ii) manufacture equipment for which accessibility solutions are available in the marketplace through other manufacturers. B. Compatibilitv Section 255 provides that where accessibility is not readily achievable, manufacturers must ensure that equipment is compatible with “existing peripheral devices or specialized [CPE] commonly used” by those with disabilities. [32] The FCC tentatively defines “commonly used” equipment as “affordable and widely available” [33] with a “specific telecommunications functionality. [34] In addition, the FCC proposes to adopt the five criteria identified by the Access Board [35] as a “starting point” for assessing compatibility. [36] The Commission should adopt rules that harness the IT marketplace’s “plug and play” dynamic, and allow voluntary industry standards bodies to develop standard interfaces that will ensure compatibility of peripheral devices and specialized CPE. 1. Compatibility Produces Accessibility In The IT Marketplace The IT marketplace, as discussed above, is driven by a “plug and play” dynamic. Under this approach, all customers - disabled and non- disabled alike - purchase a combination of components to assemble systems that best meets their needs. Each component of an IT system -- the printer. modem, monitor, keyboard or other input device, software applications, storage devices, sound and video cards and other peripherals -- is available in a wide variety of models, depending on the functions, performance qualities, and features the user wants or needs. Although these components often are purchased separately, various standard hardware and software interfaces enable the components to operate as a customized system. Thus, just as any consumer can add a particular component or software application to address his or her own information technology needs, the plug- and- play, compatibility- based systems approach allows those with disabilities to easily and flexibly adapt their systems to meet particular accessibility needs. In short, for the IT market, compatibility equals accessibility. In order to preserve the benefits of this systems approach, the Commission should therefore look to “compatibility” when it evaluates whether a manufacturer of a particular IT product has satisfied Section 255. Moreover, just as the FCC’s rules should not suggest that every company’s products must comply with each of the input and output functions identified in the Access Board’s guidelines neither should they suggest that products must be compatible with every type of peripheral device or specialized CPE. The Access Board’s guidelines. which the NPR/ l4 proposes to adopt, run counter to this flexibility by being overly specific and detailed. [38] The FCC should instead rely on a market- wide view and find that. where the IT market as a whole produces equipment that is compatible with peripheral devices and specialized CPE when readily achievable, the requirements of Section 255 have been satisfied. ITI is particularly concerned that TTY compatibility presents difficult technical issues for IT equipment. These same concerns were raised by commenters in the TRS Rulemaking, wherein the Commission indicated that it may address interconnectivity between digital devices and TTY equipment in a separate proceeding. TRS Rulemaking at 7 79. ITI strongly supports the need for a separate rulemaking to address these issues and urges the FCC to defer adopting rules requiring TTY compatibility in this proceeding until it has had an opportunity to explore the technical obstacles associated with such a requirement. 2. Creation Of A List Of “Commonly Used” Equipment Would Inhibit Manufacturer Flexibility And Innovation And Increase costs The FCC seeks comment on whether as an information source for individuals with disabilities, it should maintain a list of “commonly used” components which it defines as “widely available. [39] As an initial matter, the definition of “commonly used” should be modified to require not only that devices be “widely available,” but also widely purchased by people with disabilities. Mere availability of a product in itself does not capture the degree to which a product is in use. ITI opposes the creation of a mandatory list of “commonly used” equipment because such a list would create all the wrong incentives and lead to all the wrong results. The maintenance of such a list would create a powerful if not irresistible incentive for manufacturers of specialized equipment to obtain list- status, regardless of whether their equipment is “affordable” for consumers or meets the “widely available” test. Policing entries on the list would require the Commission and manufacturers subject to Section 255 to engage in burdensome and costly monitoring. The list would reduce the incentive and available resources for a manufacturer subject to Section 255 to develop innovative solutions for unlisted equipment by, e. g. i partnering with specialized providers to develop new accessibility solutions. The list would also reduce the flexibility and resources available to manufacturers subject to Section 255 for the development of new and innovative products, since any new product would have to be designed “to the list.” Finally, the need for such a list is questionable. Marketplace forces already have produced voluntary, industry- led processes to develop standards for interconnection and interoperability that have permitted innovation to flourish The FCC’s compatibility rules should support industry trends towards interoperable component equipment and user- customized system options which maximize the customer bases for IT products rather than discouraging innovation by providing exclusive listings of compatible equipment. To the extent that the Commission wishes to provide a purely informational database, so that people with disabilities can more easily find out about compatibility solutions currently available, ITI would support such a data depository to promote the dissemination of such information as discussed in Section IV. G below. 3. Hardware Complies With Section 255 If It Is Compatible With Software That Enables Accessibility The Commission’s compatibility rules should recognize the fundamental differences between traditional telephony products and IT products. If IT hardware products are compatible with the software which provides the accessibility options for individuals with disabilities, the Commission should find that the hardware satisfies compatibility standards. IT products are invariably associated with software. It is typically software, in conjunction with hardware, that enables an IT appliance to be compatible with peripheral devices or specialized CPE In the NORM, the Commission confirms that “Section 255 reaches only those aspects of accessibility to telecommunications over which equipment manufacturers . subject to our authority have direct control, such as the design of equipment [40] A hardware manufacturer has “direct control” only over the hardware design and whether it is compatible with software that enables accessibility, not over the software itself. Hardware manufacturers therefore should be found in compliance with Section 255 if their equipment is compatible with software that contains accessibility features. C. The “Readilv Achievable” Standard Section 255 provides that manufacturers must make their equipment accessible or compatible to people with disabilities only where “readily achievable.” The AOWl properly recognizes that the “readily achievable” standard must take into account practical economic factors that are applied on a flexible, case- by- case basis to produce reasonable conclusions. [41] In general, ITI supports the Commission’s efforts to incorporate practical economic realities and technical considerations into its “readily achievable” standard. For example, the proposed definition of “feasibility” properly recognizes the technological limitations manufacturers face in deploying accessibility solutions. such as whether the accessibility feature for a particular disability is inconsistent with the installation or operation of other accessibility solutions or requires technology that is not yet available. In addition, the proposed “expense” and “practicality” prongs of the Commission’s framework properly consider opportunity costs and net costs, market considerations and cost recovery. Accessibility features are not “readily achievable” if the costs of developing and/ or deploying them in equipment discourage manufacturers from offering the equipment in the first place or result in a price that suppresses consumer demand even if the equipment is introduced into the marketplace. Finally, ITI endorses the Commission’s tentatlve conclusion that there should be no requirement to upgrade or retrofit products already offered in the market if accessibility features become readily achievable after the product’s introduction. Some aspects of the Commission’s proposed standard require additional refinement, however. such as the Commission’s presumptions regarding the resources available to a manufacturing entity and the ability of manufacturers to absorb unrecoverable costs. In addition, the proposed standard should take into account the effect of a “fundamental alteration” on IT equipment, the availability of equipment on a marketwide basis and the product cycle for equipment in considering timing issues. Finally, it is crucial for the Commission’s “readily achievable” standard to incorporate an assessment of “compatibility” in order to accurately reflect the fundamental differences between the marketplace for IT appliances and that for traditional telephony products, Each of these aspects of the standard are discussed in turn in the following paragraphs. 1. Resources Available To The Manufacturing Unit The NPRA4 tentatively concludes that the “financial resources of the organization that has legal responsibility for and control over, a telecommunications product should be presumed to be available to make that product” Section 255 compliant [42] The NPRM further provides that the presumption may be rebutted by proof that the responsible manufacturing unit has access to either additional or fewer financial resources than would be available through the legally responsible entity [43] The NPRM refers to organizations that have “legal responsibility” for and control over a product but does not otherwise describe the relationship between the entities that would constitutes “legal responsibility.” The Commission must elaborate on the factors it will use to identify entities with “legal responsibility” for a product or to determine when such a relationship exists between a manufacturer and affiliated entities. In any event, the Notice improperly assumes that the resources of such an entity will be available to the manufacturing unit. In the IT equipment market, manufacturers typically rely on manufacturing units or product teams with autonomous budget authority. Manufacturers rely on separate budget centers for a variety of valid business reasons For example, separate budget authority enables companies to test whether a new product or product line is viable without hidden cross- subsidies from other product lines. Although the FCC on several occasions makes clear that its rules are designed to reach those entities which exert control over the components they assemble, [44] the corporation which exerts “legal responsibility” for the manufacturing sub- unit often will not control the design and development of the telecommunications product nor will the financial resources available to the corporation as a whole be available to the sub- unit. Yet the NPRM would impose on equipment manufacturers a potentially burdensome presumption that, due to the corporate structures typical of IT markets, will seldom have any meaningful application. [45] Instead, the FCC’s rules should simply identify corporate resources as one factor the FCC will balance in its readily achievable analysis, without establishing presumptions that are inconsistent with a necessarily fact- specific scenario. [45] Because the IT marketplace is highly competitive, with low entry and exit barriers, companies must quickly abandon a product line if accessibility requirements drive prices or returns to non- competitive levels. In other words, the resources available to a manufacturer may have little or no relevance to whether accessibility to a product is “readily achievable.” The Commission’s standards should therefore focus on the impact of accessibility requirements on affordability to the consumer, not just cost impact to the manufacturer. Second, in order to fairly evaluate the extent to which the financial resources of an affiliated entity are relevant to a “readily achievable” analysis, the Commission should also consider the extent to which the marketplace can support a particular product. As discussed below, a manufacturing unit may have the resources needed to design, develop and sell a particular accessibility level for a manufacturing unit and would therefore help to avoid these potential marketplace distortions. 2. “Fundamental Alteration” In Equipment In its guidelines, the Access Board properly included “whether the accessibility solution results in a fundamental alteration of the product” in the readily achievable analysis. [47] This factor, as noted by the Access Board, derives directly from the “undue burden” standard in the Americans with Disabilities Act of 1990 (“ ADA” [48]. which establishes the “scope of a public accommodation’s duty to provide auxiliary aids and services,” such as text telephones and assistive learning devices [49] Although the FCC considers product alterations as part of its “marketability” factor. the Not; ce does not separately address “fundamental alteration.” Such alterations can so degrade the underlying purpose and nature of a product that, even if the price impact is Insignificant, the product becomes unmarketable. For example, a laptop IT appliance no longer serves its light weight, portable function if accessibility requirements force a manufacturer to incorporate additional equipment that significantly increases the weight of the appliance. For this reason, “fundamental alteration” should, as in the Access Board’s guidelines, be treated as a separate factor. 3. Manufacturer Ability To Recover Costs And Affordability For Consumers The WRM states that there is no assumption in Section 255 that manufacturers “must be able to fully recover” the incremental costs associated with adding an accessibility feature. [50] A standard that ignores the recoverability of manufacturing costs, however and requires manufacturers to absorb unrecoverable cost burdens, will squelch competitive market forces chill innovation, and slow the development of accessibility solutions. The “readily achievable” factors are intended to be based on the “letter and spirit” of the ADA. However, the burden imposed under Section 255 is fundamentally different from that contemplated by the ADA. The ADA assessment of “readily achievable” considers the difficulty and the discrete, nonrecurring costs of a single entity’s long- term modifications to its gross physical environment to accommodate employees and members of the public with disabilities. These modifications typically involve relatively simple engineering and design solutions The one- time non- recurring costs associated with these modifications can be absorbed over time. By contrast, changes to a company’s design and manufacturing process like those contemplated by the NPRM and the Access Board’s guidelines force recurring costs onto manufacturers that can multiply over time as existing products are upgraded or modified to respond to changes in technology. These recurring and/ or escalating costs either force manufacturers out of the market (because they cannot recover their costs) or price products out of the market and beyond the reach of the consumers who would benefit from them. Unrecoverable cost burdens in the IT marketplace would have a significant impact on a manufacturer’s ability to continue In a competitive environment. The W/ W also seeks comment on the extent to which manufacturers and service providers should take into account the affordability of accessible products in assessing cost recovery. Because a manufacturer’s ability to absorb costs is determinative of its survival in the marketplace, the impact of an accessibility feature on the consumer affordability of products is again a key factor to which FCC must give considerable weight. The Commission cannot adopt a standard that would compel manufacturers to produce equipment at prices that suppress demand. Nor should manufacturers be compelled to produce equipment regardless of whether any demand in fact exists. This does not mean that individuals whose needs are not being met by the marketplace will be denied the solutions they need. IT manufacturers continually consult individuals with disabilities to address their needs. Incorporating affordability into the readily achievable analysis will ensure that people with disabilities will have affordable equipment to choose from and manufacturers will not be required to manufacture products that consumers cannot afford. Manufacturers can devote their resources to designing and developing potential accessibility solutions that may be more widely beneficial and economically practicable. In order to ensure that individuals with disabilities have the same opportunities to benefit from technological innovation as other customers, the FCC must give manufacturers flexibility to respond to the market. Imposing unrecoverable cost burdens on manufacturers will distort the competitive IT market, disrupt the accessibility efforts of existing manufacturers, and ultimately reduce the volume and variety of accessibility solutions brought to market. 4. Availability Of Equipment Marketwide In evaluating whether accessibility IS practical and cost- effective, the FCC should consider the extent to which an accessibility solution already is available in the marketplace through other manufacturers. As discussed in Section II, above, the underlying policies of Section 255 are vindicated regardless of whether a single manufacturer is producing accessibility solutions or whether the market as a whole is producing accessible equipment. If the Commission ignores the accessible products produced by other manufacturers when the Commission assesses the accessibility of the equipment produced by one manufacturer, the Commission will discourage manufacturers from specializing, which will effectively slow the pace of technological innovation, unnecessarily increase the cost of all equipment, and divert resources from the development of new accessibility solutions. The Commission should therefore consider whether accessible equipment is available marketwide in determining whether accessibility or compatibility is “readily achievable” for a particular piece of equipment produced by a manufacturer 5. Product Life Cycle The NORM tentatively concludes that, because the Commission will consider timing issues as part of its practicality assessment, the Commission need not establish a fixed grace period for existing products during which manufacturers would not be required to modify such products to include an accessibility feature [51] The Notice properly recognizes that “reasonable periods of time” are required “to incorporate new accessibility solutions into products under development,” and tentatively concludes that Section 255 does not require manufacturers to modify a product once it is introduced into the market in order “to incorporate subsequent, readily achievable access features.“ [52] Both of these observations are sound and should be adopted However, any final rule must be more specific; the Notice’s reference to “reasonable time periods” is ambiguous. Product life cycles are a reliable and appropriate measure for determining whether accessibility modifications to a product are readily achievable. Modifying a production line before a production cycle ends can be both inefficient and uneconomic. To the extent that there is any uncertainty as to whether compliance requirements will take into account production cycles, manufacturers would be discouraged from innovating or introducing beneficial product revisions. The Nofice’s reference in this context to the February, 1996 enactment of Section 255 is inapposite. So long as technological advances can change the ready achievability of accessibility or compatibility during the product cycle for equipment. manufacturers are entitled to the certainty and predictability of a grace period keyed to product life cycles 6. “Compatibility” As A Factor In Assessing Ready Achievability Section 255 requires that. where “readily achievable,” equipment must be compatible with specialized equipment and peripheral devices for people with disabilities if the equipment cannot be made “accessible.” The Commission should interpret the statute to permit consideration of compatibility when assessing whether accessibility is readily achievable. This approach is necessary to preserve the “plug and play” environment for IT equipment which uses the compatibility of building block components to maximize consumer choice regarding equipment configurations and system solutions. Indeed, from the perspective of individuals with disabilities who would benefit from customized accessibility solutions using IT technologies compatibility often is preferable to accessibility in terms of flexibility, choice. and quality The Commission’s goal should be to interpret the statute in a way that furthers Congressional objectives and produces the best solution for people with disabilities. Where that solution is produced by compatibility between standard building blocks and specialized components assembled into a system tailored to the individual’s unique needs, the Commissron’s rules should prefer compatibility. Accordingly, the Commission should include an assessment of compatibility as part of determining whether accessibility is “readily achievable.” IV. ENFORCEMENT MECHANISMS The #P/?/ V proposes a three- stage complaint process, starting with a “fast track problem solving phase”, which is intended to encourage informal resolution of Section 255 inquiries and complaints, and ending with a formal dispute resolution process, which would be triggered only upon complainant request and where permitted by the FCC [53] ITI supports the Commission’s efforts to establish an enforcement process that would encourage rapid resolution of complaints and limit the need to resort to formal dispute resolution procedures. ITI is concerned, however. that the complaint procedures and corresponding defenses proposed in the NPRM will have the contrary effect, unnecessarily complicating resolution processes, exhausting Commission resources, and triggering significant concerns regarding treatment of confidential and proprietary information. [54] A. Direct Contact With The Equipment Manufacturer As A Precondition To An FCC Complaint The NPRlVl properly recognizes the expediency of implementing a process that “identifies and solves accessibility problems with minimal government intervention as soon as possible Is4 At the same time, it proposes that all inquiries or complaints regarding Section 255 accessibility must first be routed through the Commission. which will then forward the complaint or inquiry to the manufacturer. [55] Rather than encouraging potential complainants and manufacturers to resolve concerns outside of the enforcement process, the proposed rules encourage individuals with any Section 255 accessibility issues to contact the FCC before contacting the manufacturer, Thus, the rules invite parties to treat simple requests for information as if they were complaints, and promise to shower the FCC with a barrage of calls and paperwork that the Commission will be required to field and coordinate before it even determines whether there is, in fact, a problem that merits Commission intervention. In short, the approach outlined in the NPRM IS at odds with the Commission’s stated preference for efficient, informal dispute resolution The Commission’s ability to effectively and efficiently enforce Section 255 hinges on its implementation of a dispute resolution process that will reserve the Commission’s limited resources for true accessibility disputes. Only by requiring direct manufacturer contact as a prerequisite to filing a complaint can the Commission successfully discourage the filing of frivolous inquiries and complaints and eliminate complaints that are the result of misinformation (or a lack of information) regarding the solutions currently available in the marketplace. [56] The manufacturer is in the best position to resolve accessibility problems quickly and efficiently, and should be given the opportunity to do so without being distracted by cumbersome, time- consuming, and resource- intensive proceedings. The Commission should therefore adopt rules that require potential complainants to attempt to resolve any problem by first contacting the manufacturer and giving the manufacturer a reasonable opportunity to respond. [57] B. Fast Track Response Time Of Five Business Davs The proposed rules provide that manufacturers will have only five business days to respond to inquiries or complaints forwarded to them during the fast track phase. Where “substantial efforts” are made to resolve an accessibility problem, the manufacturer could provide an “informal progress report” and request an extension of time. [58] But accessibility claims may be complex and involve more than one unit within a company. A response time of five business days is patently insufficient to route the inquiry or complaint to the correct employee. much less investigate and resolve it. If the Commission adopts a five- day deadline, it can expect the vast majority of manufacturers to waste time and resources drafting informal progress reports and requests for extension of time before they can begin any investigation of the consumer’s accessibility concerns. For the informal. fast track process to work as a practical matter, the rules implementing the process must be consistent with practical realities. ITI supports a 60- day response time as both reasonable and necessary to ensure that manufacturers have sufficient opportunity to match a complainant with the appropriate accessibility expert within the company, research potential solutions, and provide a written response incorporating the level of detail expected by the Commission. A period any shorter will compromise the manufacturer’s ability to respond to the complaint with the solution best suited to the consumer’s needs. [59] C. Confidentiality Rules Applicable To Section 255 Complaints The NPRM proposes that, at the conclusion of the fast track phase, the manufacturer should be required to informally report the results of its efforts to resolve the problems identified in the complaint (including any explanation as to why such problems could not be resolved) and provide copies of such reports to the complainants. The Commission has requested comment on whether the existing confidentiality rules “strike the best balance” between confidentiality concerns and “open decision- making” in the Section 255 context. [60] The Commission’s existing confidentiality rules are inadequate for this purpose without revision and clarification. In most, if not all, cases, the reporting requirement proposed in the Notice will require manufacturers to disclose highly competitively- sensitive or proprietary information regarding their costs, design, and/ or manufacturing processes. Although ITI supports a complaint process that permits the free flow of information among the manufacturer, the complainant, and the Commission, the Commission’s existing rules governing confidentiality for information provided to the FCC are ambiguous and incomplete, and will not adequately protect manufacturers who provide proprietary information in response to a Section 255 complaint which would allow competitors to file complaints and be entitled to discovery [61] The Commission should therefore clarify the confidentiality rules that will apply under Section 255 and require complainants to sign non- disclosure agreements for information provided during the complaint process. In addition, the Commission should make a per se finding that documentation, including pleadings, submitted by a manufacturer in response to an accessibility complaint that raises ready achievability issues, constitutes competitively sensitive information. The FCC should affirm that such information will be accorded confidential treatment upon request by the manufacturer, regardless of whether a request for disclosure under the Freedom of Information Act is filed by a third party. [62] D. Deadline For Formal Dispute Resolution The FCC requests comment on whether it should establish a deadline by which complainants must request formal dispute resolution once an informal complaint process is completed. ITI advocates a filing deadline of no more than 30 days. Such a deadline will provide certainty and finality to manufacturers who are the subject of informal complaints A 30 day deadline is reasonable and not burdensome for complainants since, according to the proposed rules, complainants would not be required to refile the complaint submitted in the informal processes in order to pursue a formal complaint. E. Product Families And Marketplace Availability As Complete Defenses To Section 255 Complaints The NPRM outlines three defenses to Section 255 complaints: (a) that the accessibility problem lies outside the scope of Sec. 255, (b) that the product is, in fact, accessible, and (c) that accessibility is not readily achievable. In addition, the NPRM indicates the FCC also will consider (i) the respondent’s good faith efforts to comply with Section 255 by taking actions that would increase the accessibility of product offerings early in the design process (e. g., self- assessment, external outreach, internal management processes, providing user information and ongoing support); and (ii) whether the manufacturer offers other functionally similar products in the same product family that would resolve the accessibility problem, provided that the manufacturer can demonstrate that the “product line” increases the overall accessibility of the provider’s offerings. ITI agrees that the three defenses Identified by the Commission should be considered complete defenses to any Section 255 complaint. However, the Commission’s rules should also recognize both the value of developing specialized expertise regarding the needs of particular disabilities as well as the inherent inefficiency of requiring all manufacturers to produce products that address every disability. As discussed in Section II, above, where an individual manufacturer (or the market as a whole) produces equipment accessible to and usable by individuals with particular disabilities (where readily achievable), the Congressional policies and intent underlying Section 255 have been vindicated, and the individual’s needs have been served Thus, the Commission’s rules should provide that, where a manufacturer can demonstrate the existence of (i) accessible products for substantially similar prices within the same product family, (ii) functionally similar products with accessibility features offered by other manufacturers, or (iii) products that do not raise the accessibility issue complained of but that resolve the accessibility obstacle, the manufacturer has raised a complete defense to an accessibility claim and is therefore not in violation of Section 255. F. Damages In Complaints Against Non- Carriers The NPRM seeks comment on whether there is “any basis” for finding that damages awarded under Sections 207 and 208 may be awarded against noncommon carriers. [63] Under the Communications Act. there is not. Section 207 addresses the recovery of damages by “[ a] ny person claiming to be damaged by any common carrier subject to the provisions of this Act. [64] Similarly, Section 208 refers specifically to those “complaining of anything done or omitted to be done by any common carrier subject to this Act[.] [65] Finally, Section 255 states only that nothing therein gives complainants a private right of action and that the Commission “shall have exclusive jurisdiction with respect to any Complaint under this Section.” Neither Section 207 nor Section 208 explicitly or implicitly provides for damages from parties other than common carriers. Nor does Section 255 confer additional authority upon the FCC to impose damages. The Commission lacks the statutory authority to adopt rules providing for the recovery of damages from non- carriers G. Miscellaneous Implementation Issues Finally, the NPRM requests comment on other measures the Commission might take to “foster increased accessibility” of telecommunications equipment and services. In particular, the NPRM questions whether the Commission should (i) establish a clearinghouse of information regarding disabilities issues and accessibility solutions; (ii) publish information on a manufacturer’s or service provider’s performance in providing accessible products and/ or designate a “seal” or mark that signifies a manufacturer’s compliance with Section 255; or (iii) develop a peer review process to “complement” the implementation of Section 255. 1. Establishment Of A Clearinghouse In its comments responding to the Notice of Inquiry. [66] ITI urged the Access Board and Commission to identify mechanisms by which individuals with disabilities could communicate their needs to the manufacturing community and by which manufacturers could identify or solicit information about the needs of individuals with disabilities One idea advocated by ITI was the establishment of a clearinghouse to collect information from manufacturers concerning specialized equipment available for individuals with disabilities and to collect information from individuals with disabilities regarding their unmet needs or problems with existing equipment. Although ITI continues to strongly support the creation of a depository for current information on accessibility solutions and products targeted to particular disabilities, this clearinghouse/ depository should not be deemed a legally binding obligation imposed on manufacturers [67] Nor should any information provided for inclusion in the clearinghouse be considered a representation by the manufacturer that equipment meets Section 255 requirements. Rather, the depository would be most useful and effective as an information resource, and would give manufacturers a vehicle for disseminating information on the types of equipment they offer of interest to individuals with disabilities. In order to facilitate usage of this information mechanism by manufacturers and ease of oversight by the depository administrator, the Commission should impose no particular requirements regarding the format of information. Instead, manufacturers should present product information in whatever manner they believe is best suited to convey the information, whether in the form of a detailed description or a product list with contact or web site information. 2. Information on Manufacturer Performance ITI opposes the FCC’s proposals to publish information regarding a manufacturers’ performance in providing accessible products or to establish a “seal” or mark that signifies a manufacturer’s compliance with Section 255. Such a “seal” of approval could be equally misleading because a manufacturer may be in compliance with Section 255 even if it does nof produce equipment with accessibility features (e. g. where including such features is not “readily achievable” for the manufacturer). A government “seal” identifying which equipment is accessibility- friendly would skew the marketplace in favor of the manufacturer who is better equipped to provide accessible products and against the manufacturer for whom accessibility is not “readily achievable” due to reasons beyond the control of the manufacturer 3. Peer Review Processes ITI opposes the Nofice’s proposal to create a peer review process. As described in Section I, above, the IT industry already has successfully developed a variety of standards- setting processes that accommodate accessibility issues. The FCC should allow the industry to continue to develop voluntary processes that will determine what is reasonable and necessary in light of Section 255 requirements rather than legislate the development of a peer review process. CONCLUSION ITI supports the Commission’s efforts to implement the requirements of Section 255. Without modification, however. the proposed rules are likely to achieve the opposite result -- frustrating equipment manufacturers’ efforts to develop innovative solutions, discouraging beneficial specialization, and imposing unnecessary costs on manufacturers and consumers alike. To effectively implement Section 255, the rules must harness the existing marketplace forces that have promoted technological diversity in the equipment marketplace. Only then will manufacturers be in the best position to meet the needs of those that Section 255 intends to serve Respectfully submitted, Information Technology Industry Council Colleen Boothby Janine Goodman Levine, Blaszak, Block & Boothby, LLP 2001 L Street NW, Suite 900 Washington, D. C. 20036 202- 857- 2550 Fiona J. Branton Director, Government Relations and Regulatory Counsel Information Technology Industry Council 1250 Eye Street, N. W., Suite 200 Washington, D. C. 20005 202626- 5751 June 30, 1998 Certificate of Service I, Molly A. McEwan, hereby certify that a true and correct copy of the preceding Comments of the Information Technology Industry in WT Docket No. 96- I 98 were served this 30th day of June. 1998 via hand delivery upon the following party: ITS 1919 M Street, NW Washington, DC 20554 June 30, 1998 Endnotes 1 Implementation of Section 255 of the Telecommunications Act of 1996, Access to Telecommunications Services, Telecommunications Equipment, and Customer Premises Equipment By Persons with Disabilities, WT Docket No. 96- 198, Notice of Proposed Rulemaking (rel. April 20, 1998) (“ Notice” or “/ VPRM’). 2 Telecommunications Act of 1996, Pub. L. No. 104- 104, 110 Stat. 56 (codified at 47 U. S. C. $9 151, et. seq.) (“ 1996Act”). 3 Telecommunications Act of 1996, Joint Explanatory Statement of the Committee of the Conference, S. Conf. Rep. No. 230, 104th Cong., 2d Sess. 1 (1996). 4 See a/ so Comments of ITI on the Notice of inquiry in WT Dkt. No. 96- 198, at 3- 6 (Oct. 28, 1996). The World Wide Web contains a wealth of information on the types of organizations and technologies that have been established to address the accessibility needs of individuals with disabilities. There are hundreds of relevant web sites that provide information on particular manufacturers, IT products, research, conferences, support groups, and other resources. Representative organizations providing such information and links to other relevant sites include the Alliance for Technology Access (ataccess. org) and the Yuri Rubinsky Insight Foundation (yuri. org), 5 For example, in 1998 there were (or soon will be) conferences sponsored by California State University, the World Wide Web Consortium, the National Education Computing Conference, the National Federation of the Blind, the American Council of the Blind, Closing the Gap (addressing microcomputer technology for people with special needs), and the American Speech- language Hearing Association. 6 One dictation program dropped to one fifth the price in as little as six months. Center for Accessible Technology, The Voice lnpuf Update #7 (Winter 1997- 98) (visited on March 26, 1998) . 7 The NPRM also raises a number of serious questions regarding the United States’ obligations under international trade law and its obligations not to impose technical and regulatory barriers to international trade. Domestic design specification requirements for information technology products have a significant impact on market access for global IT producers. To the extent Section 255 requirements establish specific standards and design specifications, these rules must accommodate international trade commitments undertaken by the U. S., particularly with respect to the World Trade Organization and the multilateral Agreement on Technical Barriers to Trade. Articles 5 through 9 of the Technical Barriers Agreement provide that government mandated standards and the processes for developing these standards must be open and transparent, and not create unnecessary barriers to trade. Therefore, the Commission must assess the trade policy implications of its proposals to ensure that accessibility requirements in rules adopted in this proceeding or as a result of decisions imposed through the complaint process do not establish government- mandated standards inconsistent with applicable trade agreements. 8 47 U. S. C. 9 153( 45). 9 47 U. S. C. 9 153( 14). 10 47 U. S. C. $j 153( 46). 11 47 C. F. R. 9 64.702( a). 12 NPRM at 7 42. 13 Federal- State Joint Board on Universal Service, CC Docket No. 96- 45, Report to Congress, FCC 98- 67 (rel. April 10, 1998) (“ Report to Congress’. 14 Report to Congress at lj 39, 47. 15 Id. at j’f 46, 47. 9 16 ?? 17 Id. at 747. NPRM at 7 53. 18 NPRM at 7 56. 19 ?? 20 Compare 47 U. S. C. $5 153( 45) and 153( 14) NPRM at 160. 21 NPRM at q 58. 13 22 47 U. S. C. 9 255( b). 23 NPRM at m 73- 75. The FCC identifies this list as including inputs, controls and mechanical functions that allow for operability: (a) without vision; (b) with low vision; (c) with little or no color perception; (d) without hearing; (e) with limited manual dexterity; (f) with limited reach and strength; (g) without time- dependent controls; (h) without speech: (i) with limited cognitive skills (i. e., minimizing memory, language and learning skills needed by a user), as well as output, displays and control functions that allow: (a) visual information in auditory form; (b) visual information for low vision users: (c) the ability to stop moving text; (d) auditory information in a visual (and, if appropriate, tactile) format; (d) auditory information for the hard of hearing; (e) the prevention of visually- induced seizures; (f) non- interference with hearing technologies; (g) hearing aid coupling; and (h) the ability to adjust volume control and amplification. For voice output (i. e., not tones, chords or beeps), products must enable users to adjust volume control and amplification and allow hearing aid “coupling.” The Access Board’s definition of accessibility also includes the pass- through of codes, protocols, and other information needed to provide telecommunications in an accessible format. 24 NPRM at l’j 170. 15 25 A large number of these niche companies employ individuals with impairments to assist in the design and development process. 26 Access to Telecommunications Equipment and Services by the Hearing Impaired and Other Disabled Persons, Notice of Proposed Rulemaking and Further Notice of Inquiry, 3 FCC Red. 1982, n 40 (1988) 27 Id. at q 40. 28 Telecommunications Relay Services and Speech- to- Speech Services for Individuals with Hearing and Speech Disabilities, Notice of Proposed Rulemaking, CC Docket No. 98- 67 (rel. May 20, 1998) (“ TRS Rulemaking”) at q 32. 29 Id. 30 The Commission also proposes to evaluate whether “support services” provided by manufacturers are accessible to and usable by individuals with disabilities. NPRM at fin 72, 75. This requirement, however, is beyond the Commission’s authority under Section 255 since the section requires manufacturers to ensure accessibility only when equipment is “designed, developed, and fabricated.” Many manufacturers already provide specific support services to individuals with disabilities. The Commission’s attempt to standardize support services by regulating them would likely reduce the type and nature of services made available and would constrain a manufacturer’s ability to develop support services that are best suited to a particular customer base or product line. 31 ?? 32 47 U. S. C. 0 255( d). 33 NPRM at 7 90. 34 NPRM at fi 84. 35 NPRM at 792. These criteria require: TTY connection and signal compatibility, “external access to all information and control mechanisms”; “connection point for external audio processing devices” and “compatibility of controls with prosthetics.” 36 Id. 37 ?? 38 ?? 39 NPRM at 7 90 23 40 NPRM at 7 79 (emphasis added). 41 NPRM at 7 99. 25 42 NPRM at jj 109 Id. 43 ?? 44 NPRM at jj 60 The NPRMs proposal also could lead to discrimination based on the size of the manufacturer. Based on the “legal responsibility” criteria, a smaller manufacturer competing with the manufacturing unit of a larger manufacturer in the same equipment market would be exempt from accessibility requirements, whereas the manufacturing unit would not, even where the resources available to each are the same and adding the accessibility features is no more readily achievable for one than the other. The manufacturing unit would therefore be left with two choices: to offer the product with the required accessibility features at a higher price, making the product less competitive, or to keep prices competitive and absorb the additional costs. Under either scenario, the manufacturing unit would be at a competitive disadvantage compared to the smaller manufacturer. In contrast, ITI’s proposal would accurately capture the relevant resource feature, but the high costs of doing so or the small consumer base for such a product would result in a product that is unaffordable. 45 ?? 46 See discussion infra Section lll. C. 3. 47 Appendix to 36 CFR Part 1193 - Advisory Guidance, Subpart A, Paragraph 3(d). 48 Americans with Disabilities Act of 7990. 42 U S. C. 9 12101, et seq. 49 Telecommunications Act Accessibility Guidelines, Docket No. 97- 1, 63 Fed. Reg. 5614 (Feb. 3, 1998) (to be codified at 36 C. F R. pt. 11931 50 NPRM at 1115. 51 NPRM at 1120 Id. 52 ?? 53 NPRM at fi 126. 54 NPRM at fi 124. 36 55 Although the Notice encourages potential complainants to contact the manufacturer or service provider directly to resolve accessibility claims. it proposes to impose no requirement on complainants to do so. NPRM at 7 126. 56 For similar reasons, the Commission should exercise its discretion to adopt a standing requirement with which claimants must comply in order to file a complaint against a manufacturer. See California Association of the Physically Handicapped, Inc. v. FCC, 778 F. 2d 823, 826 (DC Cir. 1985). By allowing any person (or entity) to file a complaint regardless of whether that person is disabled, is a customer of the manufacturer, or has been injured by the manufacturer’s alleged failure to provide accessibility, the Commission’s approach virtually guarantees frivolous complaints, In contrast, a standing requirement would discourage complainants from pursuing speculative accessibility claims. 57 Of course, in order to establish successful communication between manufacturers and consumers, it is essential that manufacturers clarify the mechanisms by which consumers should contact manufacturers regarding Section 255 complaints. To this end, ITI supports rules which would require manufacturers to maintain and update accurate contact information, but which would allow manufacturers the flexibility to determrne which procedures will best ensure proper handling of inquiries and complaints. 58 NPRM at 7 137 59 Where necessary, the Commission also should forward complaints in translation (e. g., where a complaint is filed in Braille). Manufacturers must be able to understand a complainant’s claims and share a common understanding with that of the FCC. Untranslated complaints will prevent a manufacturer from responding quickly to complaints and inquiries forwarded by the FCC, and would be inconsistent with the Commissron’s emphasis on expediting the fast track process. 60 NPRM at n 153. 61 This concern is particularly acute given the broad standing requirement proposed by the Commission, see discussion Enfra note 56. 62 See 47 C. F. R. 5 0.461. 41 63 NPRM at m 33, 172. 64 47 U. S. C. § 207 (emphasis added). 65 47 U. S. C. 9 208 (emphasis added). 66 In the Matter of Implementation of Section 255 of the Telecommunications Act of 1996 Access to Telecommunications Services, Telecommunications Equipment, and Customer Premises Equipment By Persons with Disabilities. W Docket No. 96- l 98, Notice of Inquiry, 11 F. C. C. R. 19152 (rel. Sep. 19, 1996). 67 Although ITI refers to an “equipment clearinghouse”, presumably this information depository would be useful both for manufacturers and service providers.