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July 14, 1999


Re: Implementation of Section 255 of the Telecommunications Act of 1996 -- Access to Telecommunications Services, Telecommunications Equipment, and Customer Premises Equipment by Persons with Disabilities, Report and Order and Notice of Inquiry (WT Docket No. 96-198)

I fully support this initiative to implement the mandates of Section 255 of the Communications Act, which was added by Congress as part of the landmark Telecommunication Act of 1996. The 1996 enactment was just the beginning, but this item, in terms of enforcing Section 255, is not just the start. Our action today comes after more than three years of striving toward the accessibility objectives of this important statutory provision by many consumer and industry participants.

I commend those who have participated tirelessly in this effort to reach workable solutions on many of these difficult issues. We are presented today with the fruits of such efforts. Thank you.

Over the past several weeks, I have had the great pleasure of meeting with and hearing from many of the people who are being helped by the inclusion of 255 in the 1996 Act. The many meetings, e-mails and letters have been helpful and informative. I have learned even more about the frustrations that persons with disabilities are still experiencing when trying to place telephone calls. For example, I completely understand the importance of access to voicemail and interactive menus.

People with disabilities can be hampered daily by lack of access to services others take for granted -- leaving a message for a colleague, reaching the desired person at a business, or simply receiving a phone call. As one commenter in the proceeding said so eloquently, "without access to certain enhanced services, such as automated voice response systems and voice mail services, individuals who are deaf or hard of hearing will continue to be barred from enjoying even basic access to the telecommunications network."

This all reminds me about what it was like at one time for me. As I said before when we adopted the notice in this proceeding, I know personally the frustrations of being relegated to the outskirts of "normal" society because of the inability to access the necessary instruments of daily life. Following a serious jeep accident, I recall vividly the feelings of helplessness brought on by the inability to help myself with basic life functions. During my year-long convalescence I found myself preferring the hospital over my home. Home was the real world of difficult stairways to navigate, rather than the ramps of the hospital. It was bathrooms that were a nightmare to get to and use, and it was inhospitable beds and chairs. It was a place where I watched fully functional people move easily in and out of every day, living normal unencumbered lives. But as I reflect and tell some astonished people, it was the best thing that ever happened to me. That experience has guided me in this proceeding in part because it allowed me to experience first hand how much of a jungle the world can be to someone who is disabled.

I have also been very pleased by the input from the telecommunications industry and the manufacturers. Moreover, I have been extremely impressed by the initiative and leadership of several organizations and companies that, in consultation with consumer groups and disabled persons, have already implemented Section 255's requirements. These law-abiding entities (which I would suggest represent a vast majority of our corporate citizens subject to Section 255) will have no fear of our actions today or enforcement actions of tomorrow.

I understand the industry's remaining concerns as much as I understand the concerns of consumers that would want us to go as far as we can in making all communications services and equipment accessible to all. But, despite our legal wrangling here today, we are duty-bound to consider all of these remaining concerns and we are duty-bound to act within the terms delegated to us by the elected members of Congress.

In this vein, I have grave concerns about the draft item's use of "ancillary jurisdiction" to extend the accessibility requirements of Section 255 to providers of voicemail and interactive menu services, as well as to manufacturers of telecommunications equipment and CPE which perform such functions. I think the draft order before us today has chosen to primarily rely on the least sustainable course for covering such services and may have placed much of the good work embodied in this item at unnecessary risk.

I definitely support the result that we are striving for with regard to voice mail and interactive menus. I agree that we should take all reasonable and aggressive steps to ensure that people with disabilities are unimpeded from using telecommunications due to barriers created by voice mail systems and interactive voice menus. The problem has been identified, it is real, and should be remedied as quickly as possible. However, the draft order's primary approach, in my mind takes a grave step. The draft item seems to concede that voice mail and voice menu services are excluded from section 255, yet is comfortable reaching for ancillary jurisdiction to rewrite the provision more to its liking, admittedly for perhaps the worthiest of causes. I am uncomfortable with this assertion of unbridled, plenary authority to legislate coverage, especially where Congress appears to have by the terms of its Act, excluded certain areas from coverage. I am unconvinced that such an unrestrained application of ancillary jurisdiction has been sanctioned by the courts, nor do I believe it to be consistent with our own precedents. Accordingly, while I support 99.99 percent of this item and everything that it achieves, I must dissent from its assertion of ancillary jurisdiction.

I believe there are a number of theories that potentially would have allowed us to provide these services within the terms of the statute and without usurping the legislative prerogatives of Congress. I accept the Chairman's invitation to continue exploring these alternative approaches. I am sorry that we are not able to rely on these other legal theories without resorting to the use of ancillary jurisdiction. I can only hope that the decision to rely, in whole or part, on ancillary jurisdiction does not result in litigation that delays the availability of the relief which is sorely needed.