June 30,1998

Ms. Magalie Salas
Lucent Technnology Bell Labs Innovations

Diane M. Law 1825 I Street. N. W. Corporate Counsel Tenth Floor
Law Division
Room 1002 Washington, DC 20006 Telephone 202 756 7092
Facsimile 202 756 7093
E Mail dianemlaw@lucent. com

Secretary Federal Communications Commission 1919 M Street, N.
W. Room 222
Washington, D. C. 20554

Re: WT Docket 96-198 Implementation of Section 255 of the
Telecommunications
Act of 1996

Dear Ms. Salas:

Enclosed please find an original and nine (9) copies of Lucent
Technologies Comments for filing in the above- referenced
proceeding. Also enclosed is a
copy to be stamped and returned for our files.

Please do not hesitate to contact me should there be any questions.

Sincerely, Diane Law

Before the Federal Communications Commission Washington, D.
C. 20554

In the Matter of Implementation of Section 255 of
Telecommunications Act of 1996

Access to Telecommunications Services, Telecommunications
Equipment, and Customer Premises Equipment By Persons with
Disabilities

WT Docket No. 96- 198

COMMENTS BY LUCENT TECHNOLOGIES

Diane M. Law Corporate Counsel Regulatory Affairs Law Division
Lucent Technologies

Executive Summary

Lucent fully supports the goals of Section 255 and applauds the
Commission's desire to increase access to telecommunications
equipment by Americans with disabilities. Lucent shares the
Commission's commitment to ensuring that disabled Americans are
not precluded from enjoying the benefits of improved
telecommunications technology and will continue to develop
accessible functionalities for its products. When crafting its Section
255 rules, Lucent requests that the Commission consider the
following:

All telecommunications and customer premises equipment (CPE)
marketed in the United States is subject to the obligations imposed
by Section 255. The manufacturer or party introducing equipment
into the marketplace in its final form under its brand name should
be responsible for assuring compliance with these obligations.

The definition of disability should include only people who
experience, as a result of physical or mental impairments, difficulty
accessing  telecommunications equipment and CPE.

The overall resources of an entire manufacturing corporation are an
inappropriate basis upon which to assess whether an action, with
respect to an individual product or product line, is readily
achievable.

The Section 255 complaint resolution processes must strike a
balance between the needs of consumers and manufacturers.

* The informal complaint process must allow manufacturers
sufficient time to respond fully to consumer complaints.

* To prevent frivolous complaints and address the needs of business
equipment customers and manufacturers, standing requirements for
complainants should be imposed.

* Commercially sensitive information submitted to the Commission
pursuant to Section 255 must be protected.

Introduction Pursuant to Section 1.4 15 of the Federal
Communications Commission's Rules, Lucent Technologies
(Lucent) respectfully submits the following Comments in response
to the Notice of Proposed Rulemaking, FCC 98-55, released April
20, 1998( Notice). The Notice sought comment on issues related to
Section 255 of the Communications Act regarding the accessibility
of telecommunications services and CPE to persons with
disabilities. [2] Lucent manufactures CPE and telecommunications
equipment and is a major supplier of such equipment in the United
States and around the world. Its telecommunications equipment is
used by local, long distance, and wireless carriers to provide 
telecommunications services, and its CPE serves a wide range of
businesses.*

Section 255 requires manufacturers of telecommunications
equipment and CPE to ensure that the equipment is designed,
developed, and fabricated to be accessible to and usable by
individuals with disabilities, if readily achievable. In addition, if
products are not accessible, manufacturers must ensure that the
equipment . . . is compatible with existing peripheral devices or
specialized CPE commonly used by individuals with disabilities to
achieve access, if readily achievable. [3]

Lucent fully supports the goals of Section 255 and applauds the
Commission’s desire to increase access to telecommunications
equipment by persons with disabilities. Lucent shares the
Commission’s commitment to ensuring that disabled individuals
are not precluded from enjoying the benefits of
improved telecommunications technology and will continue to
develop accessible functionalities for its products. Most of
Lucent’s business equipment terminals come equipped with
numerous features that increase their accessibility by people with
disabilities. For example, Lucent terminals have raised number keys
which provide an orientation point for people with vision
disabilities, volume control buttons and lights that flash for
incoming calls which aid people with hearing disabilities, and
speaker phones which assist people with limited mobility or
dexterity. Furthermore, all Lucent products are reviewed in the
design stage by human factors experts who analyze new products
and improve those products ease of use for
all people. [4 & 5??]

Lucent supports Commission action that furthers the goals of
Section 255 and agrees (with the clarifications requested) with the
following conclusions or statements listed by the Commission in the
Notice:

* The Commission has authority to promulgate rules to enforce
Section 255 and its ultimate decisions need not be based on the
Access Boards Guidelines
[6]

* Section 255 explicitly precludes private rights of action. Section
255 grants the Commission exclusive authority to resolve Section
255 complaints;
[7]

* Section 255 applies to equipment only to the extent the equipment
serves a telecommunications function. [8] Lucent suggests that if
equipment is not intended to serve and is not marketed for
telecommunications functions, such equipment should not be
subject to Section 255. Manufacturers should not be responsible for
non- intended uses of products;

* Section 25 1 (a)( 2) governs carriers’ confzguration of their
network capabilities. [9] Lucent requests that the Commission
clarify that telecommunications carriers are primarily responsible
for compliance with Section 25 1. Because manufacturers can not
control carriers’ network configuration choices, manufactu rers
should not be subject to Section 25 1 (a)( 2). Manufacturers,
however, will work with telecommunications carriers to develop
equipment to carriers [10] specifications which will enable
carriers to provide accessible services;

*  Manufacturers of telecommunications equipment and CPE must
develop and manufacture accessible equipment; however, they are
responsible only for those accessibility features over which they
have control. [11] Lucent
suggests that the Commission clarify that if equipment is
manufactured prior to the passage of Section 255 rules, the original
manufacturer is not responsible for making that equipment
compliant with Section 255. Furthermore, if such equipment is
refurbished and resold by other entities after passage of Section 255
rules, the original manufacturer should not be responsible for
making that equipment compliant with Section 255 because the
resale of used equipment is not within the manufacturer’s control;

* “Readily achievable” means “easily accomplishable and able to
be carried out without much difficulty or expense. [12] The
definition of  "expense" includes dollar costs, the costs of other
resources, and opportunity costs. Lucent agrees with the
Commission and with commenters that suggest  expense
must include all costs, i. e., dollar costs, opportunity costs, and
research and development costs; [13]

* Timing is a factor that must be considered when evaluating
whether adding a particular accessibility feature is readily
achievable, because, in general, it becomes more difficult and costly
to add a particular feature when a product has passed the
development stage. Once a product is introduced into the market
without accessibility features that were not readily achievable at the
time, Section 255 does not require that the product be modified to
incorporate subsequent, readily achievable access features. [14]
Although we support many of the Notice's tentative
conclusions, Lucent requests that the Commission consider the
following arguments regarding the Commission's implementation
of Section 255.

All telecommunications and CPE marketed in the United States is
subject to the obligations imposed by Section 255. The party
introducing equipment into the marketplace in its final form under
its brand name should be responsible for assuring compliance with
these obligations.

The Commission sought comment on its proposal to define a
"manufacturer" as an entity that sells to the public or to vendors that
sell to the public; a final assembler. [15] Lucent largely supports
that conclusion, however, we would clarify that the final assembler
should be the entity under whose brand name the equipment is
marketed. This approach will provide the most certainty for
consumers of telecommunications equipment and CPE. Where a
manufacturer designs, develops, and fabricates equipment it
introduces into the marketplace under its own brand name,
responsibility for Section 255 compliance is clear. In addition, in
such situations, consumers will have no difficulty identifying the
responsible contact for accessibility information
or complaints on a particular product. The entity whose name
appears on a product, however, is not necessarily the entity that
designs and manufactures the product. [16] In those instances,
unless the entity whose brand name appears on the product is
considered the manufacturer, [17] consumers and the Commission
will not easily be able to identify and contact the manufacturer of
the product. If the Commission adopts this definition, the consumer
or the Commission would simply contact the entity whose name
appears on the product. Of course, where the design, development,
fabrication, and marketing of equipment involves two or more
firms, those parties would be free to apportion, by contract among
themselves, responsibility for handling informal, Section 255
consumer complaints and liability for the consequences of
equipment found not to be in compliance with the obligations of
Section 255. 

The Commission should limit the definition of disability to include
only people who experience, as a result of physical or mental
impairments, difficulty accessing telecommunications equipment
and CPE. [18]

The Commission proposed to adopt the ADA definition of
disability,  physical or mental impairment that substantially limits
one or more of the major life activities of an individual; a record of
such an impairment; and being regarded as having such an
impairment. [19] Lucent disagrees with the Commission's proposal
and urges the Commission to limit the definition of disability to
include only people who experience, as a result of physical
or mental impairments, difficulty accessing telecommunications
equipment and CPE. In the context of Section 255, it makes little
sense to include individuals who do not have physical or mental
impairments and who do not experience difficulties accessing
telecommunications equipment and CPE within the definition of
"disability."  Requiring manufacturers to consider and document the
needs of people without impairments or who do not experience
difficulty accessing telecommunications equipment in the Section
255 development and manufacturing process will deplete resources
that could be used to develop new and better accessibility features.

Furthermore, in order to provide guidance for equipment
manufacturers in interpreting the definition of disability,  the
Commission proposed to use the Access Board's list of categories
of common disabilities. [20] The Commission, however, stated that
the list is neither exhaustive nor final. The Commission should find
that, under Section 255, manufacturers are required to develop
accessibility features only for individuals with disabilities that fall
within the Access Board's list of categories. A manufacturer cannot
and should not be required to anticipate the needs of individuals
with categories of disabilities that were not recognized by the
Access Board or the Commission. The Commission could
prospectively amend the Access Board's list in a separate
rulemaking proceeding, but should not hold manufacturers
retroactively responsible for types of disabilities that are
not identified when the Commission adopts its Section 255 rules.

The overall resources of an entire manufacturing corporation are an
inappropriate basis upon which to assess whether an action, with
respect to a  individual product or product line, is readily
achievable. 

Although the Commission correctly noted that expense must be
considered in the definition of  "readily achievable," the
Commission added that the financial resources of the organization
that has legal responsibility for, and control over, a
telecommunications product or equipment should be presumed to be
available to make that product accessible. [21] The Commission
noted that the presumption could be rebutted by showing that the
sub- unit actually responsible for the product or service in question
does not have access to the full resources of the corporation. [22]

Lucent strongly disagrees with that conclusion. Consideration of
corporate resources will impose more stringent accessibility
standards on products offered by large firms than are imposed on
small firms, to the detriment of large firms and consumers. Firms
that employ more than a handful of people divide their personnel
into specialized and efficient teams or units. For manufacturers,
those units may focus on particular product groups or customers and
make decisions largely in the same manner as small firms.
Including corporate resources will penalize units of large firms
because they will be subject to higher accessibility standards. In all
cases, small firms will be permitted to add less accessibility features
than a similarly-sized unit of a large firm. The products of small
firms with less accessibility features could be marketed at lower
prices than the products with accessible features marketed by larger
firms, placing the latter at a significant disadvantage in a
competitive marketplace. This marketplace disadvantage will,
inevitably, result in reduced profit margins for large firms and will
place in jeopardy the continued offering of those products.

More importantly, by treating specialized units of large firms
differently than small firms, the Commission will stifle the
development of new accessibility features and new technologies.
For identical products and features, units of large firms always will
be required to incorporate less profitable accessibility features than
similarly- sized small firms. Because large firms accessible products
will be less profitable than small firms products, large firms will
have little incentive to devote resources to the development of
accessible products. This disincentive will hinder the growth
of accessible technology. Moreover, because large firms will have
smaller profit margins on their products than small firms, this policy
may discourage large firms from pursuing new technologies.

Inclusion of corporate parent resources does not yield a
competitively neutral outcome and is ill suited to the reality of most
manufacturers. Regardless of the size or financial resources of a
corporation, individual product management teams or units of a
corporation are provided finite financial resources to develop and
market particular products. Those units are generally evaluated on
their ability to stay within their allotted budgets and to generate
profits that meet or exceed anticipated levels.
Accordingly, unit decisions to invest in developing new or
innovative technology take into account only those resources
allotted to the unit.

For all of the above reasons, the Commission, in determining
whether a given product adequately incorporates readily achievable
accessibility features, should consider only the resources that are
realistically available for product development - the resources of the
unit responsible for the product.

The Commission's complaint resolution processes must strike a
balance between the needs of consumers and manufacturers.

In the informal complaint process, the Commission should allow
manufacturers sufficient time to respond fully to consumer
complaints.

Lucent shares the Commission's commitment to resolving Section
255 complaints as quickly as possible; however, the Commission's
proposed fast-track complaint process will not achieve the desired
results. The Commission proposed to permit customers to contact
the Commission with fast- track complaints and to require
manufacturers to respond to the Commission within 5 days of
receipt of the complaint. [23] Because a product marketed in the
United States may be manufactured and developed anywhere in the
world, manufacturers may not be able to identify and contact the
people who will be able to address a particular consumer complaint
within 5 business days, let alone respond to the complaint. A 5- day
deadline will not provide consumers and manufacturers sufficient
time to resolve possibly complex complaints so most fast- track
complaints will proceed into the Commission's informal and
formal complaint resolution processes. The short deadline,
therefore, will undermine the purpose of the fast- track process - the
speedy resolution of complaints without significant Commission
involvement. The Commission should allow a more reasonable
response time, which will permit manufacturers to
satisfy the needs of people with disabilities without further
Commission action or intervention. Lucent suggests that
manufacturers be given at least 30 days to respond to fast- track
complaints. [24]

To prevent frivolous complaints and address the needs of business
equipment customers and manufacturers, the Commission should
impose standing requirements for complainants.

In addition to the Commission's proposed informal complaint
timetable, Lucent strongly disagrees with the Commission's
decision to impose no standing requirements for individuals
wishing to file Section 255 complaints. First, failure to impose a
standing requirement may encourage the filing of frivolous Section
255 complaints. [25] Permitting only individuals with disabilities to
file fast- track, informal, and formal complaints would eliminate
this potential problem and would ensure that manufacturers'
resources are dedicated to solving actual accessibility difficulties.

Second and more importantly, failure to impose a standing
requirement will create additional difficulties for manufacturers of
business equipment. By allowing employees of manufacturer's
customers to contact directly manufacturers with workplace
accessibility complaints, the Commission will place manufacturers
directly in between their customers (the employers) and
the complainants (employees). A manufacturer should not be placed
in a position that jeopardizes its relationship with its customers,
which in the instance of business equipment is generally not the
individual employee that uses a single piece of the business system.
If an employee has not identified himself as being disabled and
requiring additional accessibility to telecommunications (as he is
required to do by the Americans with Disabilities Act), or has not
persuaded his employer to purchase equipment that would solve his
accessibility problems, what should a manufacturer do if the
employee complains to the Commission? Even if a manufacturer
had in stock a piece of equipment that would solve the accessibility
problem, to whom should the manufacturer turn? The manufacturer
cannot require its customer/ employer to purchase equipment.
Furthermore, the manufacturer cannot force its customer/ employer
to install that equipment in the workplace. The manufacturer simply
cannot resolve Section 255 complaints filed by employees/ users of
equipment by itself, so it should not be the first stop for work-
related Section 255 complaints. The Commission should
consider the special circumstances faced by the manufacturers of
business equipment when developing complaint processes to ensure
that those processes are fair to both consumers/ users of equipment
and manufacturers.

The Commission must protect commercially sensitive information
submitted to the Commission pursuant to Section 255.

Finally, because information used to determine whether
incorporating a feature is readily achievable directly relates to a
manufacturer's product design and development process, such
information may be highly proprietary and sensitive. Public
disclosure of information related to the design, manufacture, and
pricing of products could jeopardize manufacturers'
competitive positions. Therefore, Lucent requests that the
Commission establish a rebuttable presumption that information
submitted in response to Section 255 complaints is confidential.
Furthermore, we request that the Commission not require
manufacturers to disclose commercially sensitive information to
complainants prior to obtaining commercially reasonable
assurances that commercially sensitive information will be
protected from disclosure. Such assurances could be effected, for
example through non-disclosure agreements, although these alone
may not be sufficient in cases where the recipient of such
information may not have the financial viability to compensate a
manufacturer if commercially sensitive information fails to
be protected from unauthorized disclosure. 

Initial Regulatory Flexibility Analysis Section 1193.43 of the
Access Board's Guidelines appears to conflict with Section 68.3 17
of the Commission's rules.

The Commission tentatively concluded that the Access Board's
Guidelines do not overlap, duplicate, or conflict with existing
Commission rules. Pursuant to Section 68.3 17 of the
Commission's  rules, telephones must be equipped with a receive
volume control that provides a minimum of 12 dB gain and a
maximum of 18 dB gain. [26] Section 1193.43 of the Access
Board's Guidelines requires telephones to provide a minimum of 20
dB gain. [27] Because these rules appear to conflict with each other,
the Commission should clarify manufacturers' volume control
requirements.

Conclusion

Although we fully support the goals of Section 255, Lucent strongly
urges the Commission to implement Section 255 in a realistic
manner, one that does not penalize large manufacturers and does not
alter manufacturers' incentives to invest in the development of new
accessible technologies. The Commission's complaint resolution
rules also should respect manufacturers' resource limitations by
ensuring that frivolous Section 255 complaints do not deplete
resources that could be deployed to resolve legitimate complaints or
to develop new technologies. Lucent firmly believes that such
a realistic approach to Section 255 is workable and can yield
substantial benefits for consumers with disabilities.

Respectfully submitted,

Lucent Technologies Diane M. Law Corporate Counsel Lucent
Technologies 1825
Eye St. NW, 10th Floor Washington, DC 20006

Endnotes

1 47 U. S. C. 0 255.

2  Lucent no longer makes general consumer telecommunications
products. Effective October 1,1997, Philips Consumer
Communications, a firm in which Lucent owns a minority interest,
is the successor in interest to Lucent's Consumer Products division.

3 47 U. S. C. yj 255.

4 The Commission generally does not have jurisdiction over the
activities of manufacturers.

5 Notice at paras. 26- 28.

6 Notice at para 30.

7 Notice at paras. 32- 34.

8 Notice at para. 53.

9 Notice at para. 65.

10 Notice at para. 79.

11 Notice at para. 97.

12 Notice at para. 104.

13 Notice at para. 103.

14 Notice at para. 120.

15 Notice at paras. 59- 60.

16 For example, in contract manufacturing, a firm fabricates
equipment designed, developed, and marketed by another firm. In
private labe arrangements, a firm sets specifications for and markets
under its own name, equipment designed, developed, and marketed
by another firm. In license agreements, a firm manufactures and
markets equipment designed by another fum.  Entities that do not
design or manufacture products and that place
their brand names on products, i. e. service providers or retail stores,
should be considered  manufacturers only for Section 255 purposes.

17 Notice at para. 70.

18 Notice at para. 68.

19 ??

20 Notice at para. 70. The Access Board listed disabilities affecting
hearing, vision, movement, manipulation, speech, and interpretation
of
information.

21 Notice at para. 109.

22 Notice at para. 109. 8

23 Notice at para. 136.

24 Respondents have 30 days to answer formal complaints. 47 C. F.
R. $ 1.724( a).

25 A manufacturing competitor could use the Section 255 process
to hinder the efforts of its competitors or to try to obtain sensitive
product information. Groups or individuals that oppose unrelated
policies of manufacturers could file unwarranted Section 255
complaints to harass manufacturers.

26 47 C. F. R. $68.317.


27 Section 1193.43( e) of the Access Board Guidelines. Notice at
C6. 14