Before the 
Federal Communications Commission 
Washington, D. C. 

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 


SUMMARY OF 
REPLY COMMENTS OF THE AMERICAN FOUNDATION FOR THE BLIND 


Section 255 establishes affirmative obligations on the part of service providers and 
equipment manufacturers to make their respective products accessible to persons with disabilities 
if "readily achievable." Accordingly, in the NPRM, the Commission proposed to adopt 
guidelines developed by the Access Board that would provide clear guidance for implementing 
the statute's mandate. While AFB did not believe that the NPRM went quite far enough, it was 
certainly a step in the right direction. 

By contrast, some commenters representing industry are asking the FCC to reject key 
elements of the Access Board's guidelines, in favor of guidelines and standards that are vague, 
unclear and insufficient. TIA asks the FCC to define accessibility to mean that equipment is 
accessible if any part of the equipment is accessible to any person with any disability. That is, a 
phone could be deemed accessible to the deaf if its input devices were accessible to those with 
impaired color perception. In addition, TIA and others ask the FCC to declare that it is only 
readily achievable to provide accessibility across product lines (a term that is never clearly 
defined). If such a test were adopted, combined with the accessibility test, this could mean that 
the requirements of Section 255 would be discharged if a manufacturer made one product in a 
product line, some feature of which could be used by a person with a disability. AFB is also 
wary of comments that ask the FCC to import concepts from the ADA into the Section 255 rules, 
but in a way that is inconsistent with the ADA application of those concepts and inconsistent 
with Section 255. Perhaps most notable in this regard are proposals to import and then alter the 
ADA concept of "fundamental alteration" so that a covered entity can self-define the core 
functions of products or services in a manner that could allow the entity to escape accessibility 
obligations altogether. 

Ultimately, the impact of what these commenters are seeking could lead the Commission 
to adopt a rule which would result in the development of narrowly targeted, specialized 
equipment, rather than encouraging development of products and services that are broadly 
accessible. What Section 255 requires is that person with disabilities have the same choices and 
opportunities to share in the telecommunications revolution as those who are not disabled. 
While many comments are replete with anecdotes, those anecdotes really only suggest 
that it may not be possible to make each product accessible to every person with every disability. 
That is no justification for abandoning the goals of Section 255, however. Indeed, if the 
Commission requires development of an accessibility plan for implementing the Access Board 
guidelines, industry will begin to learn ways to incorporate accessibility features in products and 
across product lines, taking advantage of ongoing developments in memory, battery life and the 
like that make it simpler to add features. 
Other proposed modifications to the definitions proposed in the NPRM would serve to 
undercut the goals of Section 255, and would be at odds with the clear language of the Act. 
-Some commenters ask that accessibility obligations be limited to divisions within 
manufacturing corporations, thus effectively limiting what is "readily achievable." 

-Some commenters ask that the Commission adopt a cost recovery test that is 
impossible to apply. 

-Some commenters seek to define the terms "telecommunications," 
"telecommunications equipment" and "customer premises equipment" narrowly, 
in a manner inconsistent with the statute and with the purposes of Section 255. 

In addition, several commenters ask the FCC to adopt procedural rules -statutes of 
limitation and standing requirements -that are neither necessary or appropriate given the 
purposes of Section 255, as AFB has shown. The FCC has full authority to hear complaints from 
all interested parties and to devise appropriate remedies for breach of Section 255, including 
damage remedies. Further -contrary to the comments submitted by many companies -the FCC 
should encourage the development of disabilities solutions by establishing an appropriate 
clearinghouse for information on accessibility. 


TABLE OF CONTENTS 
Page 
I. THE COMMISSION MUST MOVE AGGRESSIVELY TO IMPLEMENT SECTION 255. 1 

A. Experience Indicates That Strong Action Is the Only Way To "Ensure Accessibility." .... 1 
B. The Commission Must Be Particularly Wary of Industry Requests That 
Would Write Section 255 Out of Practical Existence....... 4 

1. The combination of the "accessibility,"" product line," "fundamental 
alteration" and "cost recovery" tests proposed by some commenters would 
seriously thwart the goal of Section 255. .... 4 

2. Reading the terms "telecommunications" and "telecommunications 
equipment" narrowly ignores industry trends and will make future 
equipment less accessible........ 9 

3. It is critical that the Commission require manufacturers and service providers 
to develop compliance plans. ... 13 

4. The Commission cannot allow industry to escape accessibility obligations 
simply because meeting the obligations involves some design trade-offs... 14 

5. Efforts by industry to discourage adoption of the Access Board Guidelines 
are based on a misunderstanding of those guidelines. .... 15 

II. THE COMMISSION SHOULD REJECT MANY OF THE CHANGES 
SUGGESTED BY INDUSTRY TO DEFINITIONS PROPOSED IN THE NPRM.... 16 

A. Changes Proposed To the Definition of Readily Achievable Are Too Vague To 
Apply and Are In Many Cases Inconsistent with the Statute...... 16 

1. The "Product Line" Approach As Proposed By Industry Is Too Vague To 
Apply .... .16 

a. The proposed product line approach is seriously flawed. .... 17 

b. Product line may be an effective alternative where accessibility is not 
readily achievable, but it cannot substitute for readily achievable 
accessibility. ..... 24 

2. The Fundamental Alteration Test Does Not Work As Industry Suggests. ... 24 

3. The Cumulative Cost Test Should Not Operate As Industry Proposes for 
Purposes of Determining Whether Accessibility is Readily Achievable........ 26 

B. Both For Purposes of Defining Responsibilities Under Section 255, and for 
Purposes of Determining Whether Access Is Readily Achievable, the Term 
Manufacturer Must Reach Parent Corporations....... 27 

III. THE COMMISSION HAS AND SHOULD RETAIN BROAD AUTHORITY 
TO RECEIVE AND REVIEW COMPLAINTS, AND TO WORK CREATIVELY 
TO FOSTER ACCESSIBILITY. .... 29 

A. The Commission Should Not Adopt Strict Standing Standards. ..... 29 
B. The Commission Could Adopt a "Statute of Limitations" On Filing Complaints, 
But It Would Have To Be Carefully Tailored, and Is Probably Unnecessary. .......... 30 
C. The Commission Should Establish An Information Clearinghouse. ... 31 
D. Damages Are An Important Compliance Tool and Are Available. ..... 32 
E. The Burden of Proof Must Fall Upon Equipment Manufacturers and 
Service Providers......32 

IV. ADOPTION OF THE ACCESS BOARD GUIDELINES AND CONTINUED 
EXAMINATION OF CURRENT REGULATORY AND STATUTORY 
REQUIREMENTS PERTAINING TO INFORMATION SERVICES ARE 
CRITICAL TO PROVIDING ACCESSIBILITY..... 34 

A. Adoption of the Access Board Guidelines Will Encourage Innovation and the 
Free Flow of Product Information.... 34 

B. To Provide Continuing Protection for the Disabled, the Commission Does Need 
to Continually Reexamine Its Treatment of Information and Telecommunications 
Services. .... 34 

CONCLUSION....37 

TABLE OF AUTHORITIES 
Page 
CASES 
A. G. Spalding Brothers Inc. v. F. T. C., 301 F. 2d 585 (3d Cir. 1962)....19 
Independent Living Resources v. Oregon Arena Corporation, 
982 F. Supp. 698 (U. S. D. C. Or. 1997).... 4, 7, 23 

Martin v. PGA Tour, Inc., 994 F. Supp. 1242 (U. S. D. C. Or. 1998)......25 

STATUTES 
47 U. S. C. §153( 20) ....12 
47 U. S. C. §153( 43) ....10 

OTHER 
Cane, Alan, The Financial Times, "Trying to Connect You" (July 28,1998).... 35 
"A Digital Tornado: The Internet and Telecommunications Policy," Federal 
Communications Commission, Office of Plans and Policy (March, 1997) .... 35 

"A Motorola Creates New Division to Focus on Integrated Information and 
Communication Services for Consumers," Motorola Press Release, August 4, 1998.... 10 

ADA Title III Technical Assistance Manual Covering Public Accommodations 
and Commercial Facilities, Department of Justice, at III-3.1000 ... 11 

U. S. Department of Justice at 9 (August, 1996)(" Barrier Removal Update") ... 13 
The Best Wireless Phone on the Market," Business Week, August 10, 1998 at p. 60 ... 18 

Before the 
Federal Communications Commission 
Washington, D. C. 


In the Matter of ) 
Implementation of Section 255 of the ) 
Telecommunications Act of 1996 ) 
Access to Telecommunications Services, ) WT Docket No. 96-198 
Telecommunications Equipment, and ) 
Customer Premises Equipment ) 
by Persons with Disabilities ) 


REPLY COMMENTS OF THE AMERICAN FOUNDATION FOR THE BLIND 
I. THE COMMISSION MUST MOVE AGGRESSIVELY TO IMPLEMENT SECTION 255. 
A. Experience Indicates That Strong Action Is the Only Way To "Ensure Accessibility." 


There is an unfortunate tone in the initial comments filed by some companies and 
industry trade associations. These can be characterized as making two broad points (1) strong 
Commission action is not necessary, because the industry is providing access on its own, and 
will do so without government intervention; and (2) accessibility cannot be provided or even 
planned for except at great expense and enormous cost to the nation. [1] For the disability 
community, this is an old song: both before and after the adoption of the ADA, this community 
has heard that it is difficult to provide access, that more will be accomplished without 
government intervention; or, that nothing can be done so government should tread lightly ... etc. 
etc. A short visit to the Department of Justice ADA compliance website suggests that there is 
nothing novel about the claims being raised here, and nothing unique about the burdens that are 
being placed on the telecommunications industry that would justify reading the requirements of 
Section 255 narrowly. 

To the contrary, the telecommunications industry is now being asked to undertake an 
effort that many other industries undertook over a decade ago. The ADA recognized (among 
other things) that, as a simple matter of equity, public places had to be accessible to people with 
disabilities. In 1996, Congress extended the goals embodied in the ADA by recognizing that 
the telecommunications revolution had brought about a new type of public space: a virtual 
sphere to which access was just as critical as any physical structure. It is to the 
telecommunications industry's credit that this sphere has been created; but it is now the 
industry's responsibility --and the responsibility of the Commission --to ensure that this sphere 
is accessible. While the prospect of requiring industry to achieve accessibility might seem 
frightening at this juncture, the AFB's experience with the ADA is a simple one: if the 
Commission requires accessibility, and makes it clear that it will move strongly to respond to 
complaints, access will be provided. If the Commission is unclear in its direction, industry will 
be encouraged to devote its efforts to legal avoidance rather than practical compliance. As AFB 
pointed out in its initial comments, this requires the Commission to look to the future, and to 
read Section 255 broadly, and not narrowly. And, it requires both the industry and disability 
community to recognize that accessibility and usability for people with disabilities is evolving 
and will improve as research, technical expertise and production methods begin to put a proper 
focus on the needs of these too long neglected consumers. 

Many commenters alluded to advances in accessibility for people with disabilities 
brought about through the operation of a competitive marketplace. [2] While we appreciate the 
enormous advances made in telecommunications and information technology, and the degree to 
which many of those advances have, at least indirectly, benefited people with disabilities, we do 
point out that the competitive marketplace has not ensured access for people who are blind or 
visually impaired. Modern telecommunications products are highly dependent on visual 
displays and rarely, if ever, provide audio output of the information shown on the visual display. 
Indeed, many of the visual displays themselves are inaccessible to people with impaired 
vision because they are not sufficiently well-lit or customizable in terms of font size, contrast, 
character size etc. Increasingly, telecommunications devices employ touchscreens rather than 
tactually discernible, keys for input and control. While touchscreens are not necessarily 
impossible to make accessible for people who are blind or visually impaired, well-designed 
audio feedback is necessary to accomplish this accessibility.. Finally, although it is possible to 
design telecommunications products with communications ports to enable access by people 
with disabilities to a product's input and output via specialized, assistive technology, 
commercial devices rarely, if ever, include such ports or capabilities.. 

We are pleased to see some positive developments such as a greater effort by industry to 
provide accessible user manuals and other information in alternate formats. In addition, 
companies are beginning to seek opportunities to work with knowledgeable consumers who are 
blind or visually impaired and with knowledgeable organizations serving this population. 
However, in reviewing the comments in this docket, it is perhaps most important that the 
Commission keep in mind a recent quote from a case involving access to a sports stadium. In 
that case, the stadium owner and designer complained that they were being expected to consider 
design issues in an entirely different way than they had addressed those issues before. The 
court noted: 

It is no answer to say this is the way we've always done it --we've always 
discriminated against persons with disabilities. A prudent designer would have 
understood that, in enacting the ADA, Congress intended to do more than to 
simply maintain the status quo. Congress intended to establish higher standards 
for newly constructed structures, and to change the manner in which buildings 
were designed so that persons with disabilities could more fully share in the 
benefits that are available from public accommodations. Had Congress been 
satisfied with the status quo, there would have been no point in enacting the 
ADA. 

Independent Living Resources v. Oregon Arena Corporation, 982 F. Supp. 698, 748 
(U. S. D. C. Or. 1997). 
It is true that, the FCC's proposed rules, and the Access Board Guidelines ask the 
telecommunications industry to think differently about design, development and fabrication 
issues. Understandably, that is something many wish to avoid; many argue against the FCC 
proposed rules and Access Board guidelines because they will require a different approach to the 
design and development of equipment or services. But, the proposed rules are not defective 
because they require a different approach to design, development and fabrication; they would be 
defective if they did not do so. To paraphrase Independent Living, had Congress intended to 
maintain the status quo, it would not have adopted Section 255. 

B. The Commission Must Be Particularly Wary of Industry Requests That Would Write Section
255 Out of Practical Existence. 

Several of the comments filed by industry representatives would have the effect of 
writing Section 255 out of the statute. Five positions are particularly notable. 

1. The combination of the "accessibility," "product line," "fundamental alteration" and 
"cost recovery" tests proposed by some commenters would seriously 
thwart the goal of Section 255. 

TIA, Motorola and others, perhaps inadvertently, ask the Commission to approve a series 
of standards and definitions that would seriously undermine Section 255. These include: (a) a 
definition of accessibility that departs from Access Board guidelines; (b) a proposal for a product 
line to accessibility; and (c) a vague "fundamental alteration" test. Taken together and combined 
with the proposals for cost recovery in the definition of readily achievable, the effect is stunning. 
Under the TIA definition of accessibility, "telecommunications equipment is accessible to 
the extent that it enhances the ability of a person with a disability to use... the equipment... by 
incorporating one or more of the following features..."[ 3] TIA incorporates the so-called
18-point checklist as the list of features. Providing any one of the features listed satisfies the
accessibility requirement in toto. Further, the Commission is encouraged to interpret Section 255
as applying to people with disabilities as a "group." Applying this logic, a manufacturer could be
considered to be in compliance under Section 255 if any one person with a disability can use a
product. 

It is also evident that as crafted, the equipment does not have to be fully accessible to 
anyone. For example, one satisfies the "features" test (and hence all accessibility obligations for 
all disabilities) by providing "at least one mode" for "input, control and mechanical functions" 
"that does not require user color perception." Output, display and control functions are treated 
separately, so that the equipment is deemed accessible as a whole under the TIA test even if the 
output, display and control of a device do require color perception. That is, under the TIA test, a 
product is accessible if it is partly accessible to a person with any disability. 
Motorola's comments demonstrate quite clearly why the TIA definition makes no sense 
as a test of compliance. In discussing its "Pagewriter" paging system, Motorola argues that the 
Commission should not require it to incorporate features that would make the outputs accessible 
to people with impaired vision, even if that is "readily achievable," since the input device (the 
keyboard) would remain inaccessible (a position with which we disagree, since people who are 
blind or visually impaired are quite able to use keyboards, especially if simple, low-cost features 
such as a nib on the F and J key are included). [4] Motorola Comments: 
 
People with disabilities would not benefit if a manufacturer were to incorporate 
some access features into a product, but could not incorporate others that would 
make the product actually useable... It would be a waste of resources and a poor 
result for consumers with disabilities..." [5] 

However, under the TIA accessibility test, this "poor result" would be all that Section 255 
required: under the TIA "accessibility" definition, the Pagewriter 2000 would be deemed 
accessible to people who are vision impaired (because the Pagewriter could be partly accessible 
to the deaf). 

As strange as that position is, it leads to even more ironic results when the "accessibility 
test" is combined with the vague "product line" that manufacturers propose. 
Under the "product line" test, the Commission is encouraged to think of equipment in 
"groups" [6] (though as we will argue elsewhere, no definition has been offered on the scope of 
product lines). A manufacturer will be deemed to have complied with its obligations under 
Section 255 if any piece of equipment in a product line is accessible. [7] (We raise several serious 
concerns about product line in Part II of these comments.) As a result, because the Pagewriter 
was deemed "accessible," the entire product line would be deemed "accessible." No pager would 
need to be fully accessible, even if it were easy to make every pager accessible to large portions 
of the disabilities community. 

Several commenters ask the FCC to import the fundamental alteration test from the 
ADA.[ 8] This test is one that is difficult to import into the telecommunications context, since it 
ordinarily applies to a fundamental alteration to the "core function" of a facility and not to the 
ability of facility users to perceive those functions: 

The ADA does not require a public accommodation to "fundamentally alter the 
nature" of the goods or services being provided... However, it is essential to 
accurately identify the principal goods or services that are being provided, and to 
distinguish them from (1) services that are merely collateral to the primary goods 
or services... and (2) the means for perceiving those services (e. g., hearing, 
seeing, closed captioning, assistive listening devices), both of which a public 
accommodation may, in some instances, be required to alter in order to facilitate 
use of the facility and receipt of the principal goods and services by persons with 
disabilities. [9] 

The test proposed by TIA and Motorola is defined in a way so that core functions can be defined 
in part in terms of perception --the way in which a message is to be sent and received. As a 
result, the obligations set out in Section 255 can be limited by simply defining what ends a 
product is meant to serve, in a manner that can have the effect of mandating inaccessibility. 
Even where a standard is not obviously tied to perceptions, the fundamental alteration test, as 
described, presents enormous problems in application. If a manufacturer assumes that size is a 
"core function," for example, then anything that increases size -even nominally -is not required. 
And, since every manufacturer has made it clear that the process of adding and detracting 
features involves some trade-offs, it is not difficult to imagine that any change to "battery life," 
"size," or "features" would be considered a fundamental alteration. Indeed, none of the examples 
given by industry provide any guidance as to how this standard could be applied in any practical 
way, and suggest that the exception would quickly swallow the rule. When combined with a 
vague "product line" and an insufficient definition of accessibility, this standard has the effect of 
allowing manufacturers to define certain individual products in a line as "inaccessible" by 
definition, while satisfying Section 255 obligations by providing a limited number of devices 
with highly constricted accessibility.

Several commenters ask the Commission to adopt what would be a fourth nail in the 
Section 255 coffin: tests that would permit manufacturers to improperly allocate or account for 
costs associated with providing accessibility in order to avoid producing accessible equipment. 
There are several variations on these tests. Some commenters want to allow manufacturers to 
refuse to produce accessible equipment if the manufacturer decides that the costs associated with 
providing accessibility could not be directly recovered. Under this model one envisions 
manufacturers assessing the market impact of special cost "pass-throughs" on individual pieces 
of equipment reminiscent of the universal service charges. If a manufacturer decided this extra 
charge would not be desired by consumers, the product wouldn't be produced. Another variation 
is to allocate all costs of providing accessibility to each division that produces a product, thus 
increasing the apparent cost of accessibility and making it appear that accessibility is not readily 
achievable. [10] These and other variations all suffer from the same fatal flaw. It is obvious that 
every entity in a competitive market must strive to recover costs and earn a reasonable profit. 
However, ADA tests are not applied in a way that allows covered entities to recover costs of 
providing accessible facilities solely from individuals with disabilities, or to avoid providing 
accessibility on the ground that the accessibility feature will not pay for itself. Accessibility 
costs are costs that are intended to be shared across all products and by all consumers. [11] Under
this fourth prong, as some commenters have proposed it, a manufacturer could design products 
that would be unaffordable, decide not to produce them and yet satisfy Section 255 obligations. 
To be sure, industry has plenty of anecdotes to suggest why each of the elements 
described above should be adopted. AFB is sensitive to those concerns and is proposing 
elsewhere in these comments ways in which the Commission could incorporate some of the 
elements of some of the industry comments, without fundamentally hampering accessibility. 
But, the overall impact of the proposed industry approach is patent, and fatal to accessibility. 
Any approach that the Commission adopts must be drafted so that all parts, working together, 
require accessibility. 

2. Reading the terms "telecommunications" and "telecommunications 
equipment" narrowly ignores industry trends and will make future 
equipment less accessible. 

Several commenters urge the Commission to read the terms "telecommunications" and 
"telecommunications equipment" narrowly. [12] That is not a viable option in the current 
marketplace. As the Commission has itself recognized, and as the AFB pointed out in its initial 
comments, the terms are evolving terms; the lines drawn between a telecommunications service 
and an information service are based in part on an analysis of how current equipment is used to 
complete transmissions. The telecommunications process, however, is changing every day. 
Even as these reply comments were being written, Motorola was announcing the following: 

Motorola, Inc. announced today the formation of its Internet and 
Connectivity Services Division (ICSD), a new start-up services business focused 
on developing and providing integrated communication and information services 
that will simplify consumers' lives. Motorola's ICSD is part of the Internet and 
Networking Group within Motorola's new Communications Enterprise 
organization, which was recently announced by Merle L. Gilmore, president of 
the Communications Enterprise. 

Motorola ICSD will focus on developing solutions --as well as enabling third parties to develop 
solutions --that simplify consumers' communications, including speech-enabled services, 
web-based services, content services, in-vehicle services and paging information services. The 
creation of ICSD underscores the company's commitment to creating mobile productivity 
solutions as well as helping its carrier partners serve new markets and offer innovative 
services. [13] 

What Motorola recognizes is that consumers want to be able to receive and transmit 
messages in whatever manner is most convenient at the moment the communication is required. 
The communication may take the form of voice over Internet; a voice page; a text page; or a 
wireless call connecting to the traditional PSTN, but in any case the communication will often 
involve or be related to the completion of a "transmission, between or among points specified 
by the user, of information of the user's choosing, without change in the form or content of the 
information as sent and received." [14] The equipment used in the communication may be 
designed to serve multiple functions, but it will be designed to route, originate or terminate 
calls, and will fit the definitions of "customer premises equipment" and "telecommunications 
equipment." To put it another way, consumers and companies, by their actions in the market, 
are extending telecommunications functions to new networks and equipment. The 
Commission's definitions must recognize that trend, and define the terms broadly, not 
narrowly. [15] Otherwise, the effect of Section 255 will be to relegate individuals with disabilities 
to access to devices and to services that simply do not permit them to take full advantage of 
telecommunications networks. [16]
 
By contrast, several commenters (including, for example, CEMA) ask the Commission to 
make it clear that the accessibility requirement only applies to that portion of customer premises 
equipment or telecommunications equipment used for telecommunications. [17] What CEMA and 
others are effectively urging is that the Commission decide, for any piece of equipment, what 
functions are telecommunications functions and which are not. Given the speed with which 
software and equipment are changing, any distinctions that the Commission might draw would 
be inherently ephemeral and inconclusive. For example, the Commission has recognized that 
speed dialing functions are telecommunications functions. A cellular phone manufacturer might 
choose to integrate these speed dialing functions into a personal information manager (" PIM") 
(several companies are doing precisely that). Today, one might think of PIMs as being 
unrelated to telecommunications; but by the end of this year, for some customer premises 
equipment, the effective use of the speed dialing function may depend on accessibility to the 
PIM. 

Given the integration of customer premises and telecommunications equipment with 
other equipment, there is no practical way for the Commission to sensibly subdivide equipment, 
as these commenters urge. [18] It makes far more sense to do what the statute requires on its face 
– ensure that customer premises and telecommunications equipment is fully accessible if 
"readily achievable." The definition of customer premises equipment sweeps in the equipment 
employed to "originate, route or terminate" telecommunications, not just "that portion" of the 
equipment used to "originate, route or terminate calls." Telecommunications equipment is 
likewise equipment that is "used" to provide telecommunications services. [19] If Congress had 
wanted to subdivide equipment, and apply the accessibility rules only to that part of equipment 
that is used for telecommunications it could have done so; it did not do so. 
As a related argument, CEMA contends that the Commission should limit the definition 
of CPE so that it only applies to equipment attached to networks. AFB is not clear what 
network CEMA is referring to, but the definition of CPE does not support that request. The 
definition of CPE looks to the function performed by the equipment (the origination routing and 
termination of telecommunications) and is not tied to the network used, or to use in conjunction 
with "telecommunications services." [20] As CEMA effectively points out, given this statutory 
definition, the term "CPE" must be read quite broadly. 

3. It is critical that the Commission require manufacturers and service 
providers to develop compliance plans. 

Under Title III of the ADA, the existence of a plan, and procedures for annual 
reevaluation of the plan serve as evidence of good faith efforts to comply with the obligation to 
remove architectural barriers if readily achievable. [21] In this rulemaking, several manufacturers 
have suggested that the process of determining whether accessibility is readily achievable will 
involve investigation of a complex industrial process. The Commission does not have the 
resources to conduct post hoc investigations into what was or could have been considered in this 
process without the aid of records. [22] In order to "ensure" that equipment is designed,
developed and fabricated to be accessible, the Commission must adopt a regulatory plan that will
permit it to dispose of complaints in a sensible and timely way. 23 As a practical matter, this
means that a compliance plan must be developed and some records must be maintained. While
industry argues that this will be costly, [24] industry does not even begin to discuss the obvious
and enormous costs that would be associated with its own approach to the problem, which does
not appear to require a compliance plan. Under the industry approach, if a piece of equipment was 
found to be inaccessible, one would need to examine every detail of the financial and 
engineering operations of the companies to establish inter alia, opportunity costs, engineering 
alternatives, design choices and trade-offs, and so on. One could look upon these and other 
proposals as simply a typical cynical Beltway effort to make a legislative provision too wieldy to 
administer. [25] As between what has been proposed by AFB and what has been proposed by 
industry, the AFB approach is plainly less burdensome and is the only workable alternative. 

4. The Commission cannot allow industry to escape accessibility obligations 
simply because meeting the obligations involves some design trade-offs. 

Several commenters suggest that the Commission regulations should ensure that 
accessibility is not provided at the expense of other equipment features and functionality. These 
commenters point out that, for any given piece of equipment, there are only a certain number of 
functions that can be implemented, given the necessary trade-offs that must be made in the 
design and fabrication process (how much memory can be installed, battery life, weight, size, 
etc.). [26]
 
AFB recognizes that equipment design does inherently involve trade-offs. But, it is 
precisely this fact that makes Section 255 so important. We don't ascribe bad motives to 
manufacturers --in fact, we presume that in a world without limits, manufacturers would want to 
produce accessible equipment in order to reach every person that could be reached. The problem 
is that, in a world with limits, individuals with disabilities have found that the trade-offs are too 
often made in a manner that implements the latest mass market bell or whistle at the expense of 
accessibility. A manufacturer may always be able to say "if I don't have to implement 
accessibility, I can add a function that will be much more sellable to the portion of the public that 
is not disabled." [27] The point of Section 255 is that the trade-offs can no longer be made in a 
manner that essentially pushes individuals with disabilities to the end of the line. Hence, in its 
final rules, the Commission should make it clear that the accessibility obligations cannot simply 
be avoided on the ground that implementation of accessibility would prevent the implementation 
of another feature. [28] 

5. Efforts by industry to discourage adoption of the Access Board Guidelines 
are based on a misunderstanding of those guidelines. 

Many commenters attempt to discourage any effort to adopt the Access Board Guidelines 
by arguing that those guidelines effectively require the impossible: universal accessibility to all, 
including persons with multiple disabilities. This is simply not the case. While the Access 
Board guidelines are certainly designed to assist manufacturers and service providers in meeting 
their respective accessibility obligations, the Board has never required that every piece of 
equipment be immediately available to everyone. Indeed, everyone recognizes that at least for 
now, there will be instances where providing accessibility to one group may create a barrier to 
another. This is a non-issue and provides no basis for rejecting the Access Board Guidelines. 
Commenters are simply confusing the process and results. What the portion of the 
Guidelines that have attracted criticism do is to require consideration of accessibility issues 
broadly throughout the design, development and fabrication process. This is really nothing more 
than an implementation of the requirements of the statute. The "readily achievable" standard 
requires consideration of accessibility issues; it requires implementation of accessibility solutions 
to the extent readily achievable, in the same equipment that is available to other members of the 
public. [29] The guidelines provide important practical aid that identifies matters that should be 
taken into account as part of the process of divining accessibility solutions. In Appendix A to 
these Comments, AFT submits a Report by Dr. Leonard Kasday (the "Kasday Report") on the 
issues raised by TIA and others in objecting to the use of the Board Guidelines. As he explains, 
implementing the Board guidelines is practical and can be expected to result in significant 
benefits. [30] The guidelines should be adopted. 

II. THE COMMISSION SHOULD REJECT MANY OF THE CHANGES SUGGESTED BY
INDUSTRY TO DEFINITIONS PROPOSED IN THE NPRM. 

A. Changes Proposed To the Definition of Readily Achievable Are Too Vague To Apply and Are
In Many Cases Inconsistent with the Statute. 
1. The "Product Line" Approach As Proposed By Industry Is Too Vague To 
Apply. 

Several commenters ask the Commission to measure compliance across "product lines," 
rather than requiring manufacturers to ensure that all products are accessible. AFB is 
sympathetic to the issues being raised by manufacturers, but believes that it would be premature 
for the Commission to adopt a product line approach beyond what it has already proposed in the 
NPRM. The statute requires access to equipment, not product lines, though the Commission 
may elect to implement a defense that would allow a covered entity to respond to a complaint by 
showing that it has achieved accessibility in another of its offerings with similar price, features, 
functions, and availability. However, several concerns must be adequately addressed before the 
Commission implements any proposal for a product line defense, let alone further expand the 
concept as TIA, Motorola and others propose. Assuming that several difficulties can be 
resolved, the Commission should make it clear that the first priority of manufacturers should be 
to make equipment within a product line accessible, and then to extend accessibility to each 
product within the line to the extent readily achievable. 

a. The proposed product line approach is seriously flawed. 
The "product line" approach, as proposed, is flawed both in terms of underlying factual 
assumptions and in terms of legal analysis. 
The "product line" approach appears to be based on the following debatable presumptions: 
(1) the "FCC proposal adds exponentially to the complexity of the design process"; [31] 
(2) constraints on technology and product design make it impractical to consider 
making individual devices accessible ; 
(3) products in product lines are fungible, except as to the manner in which the input 
and output are accessed; 
(4) each product in a product line will be just as available as any other product; 
(5) a product line approach would be easier to apply; and 
(6) a product line approach would be consistent with the statute and would facilitate 
consumer choice. 
AFB does not believe that any of these assumptions are entirely accurate. As the Kasday 
Report at Appendix A explains, these assumptions ignore the benefits that would flow from 
adoption of the guidelines, overstate the difficulties of applying them, and ignore the problems 
with the proposed product line approach. 
As to the first point, some accessibility features are of little or no cost to implement. For 
example, the matrix presented by Motorola in its initial comments indicates that there is no 
specific impact on product drivers to accomplish access to inputs for individuals with little or no 
color perception as specified in the Access Board guidelines. Similarly, putting a nib on the 5 
key of a telephone keypad requires no significant expense or difficulty. In addition, some 
manufacturers are producing highly-desirable, alternate versions of equipment for distribution in 
other world markets that incorporate features that would enhance accessibility. [32] In some
cases, the process of incorporating "accessibility" will really involve very little difficulty or
expense. In other instances, a reassessment of the desires and needs of the U. S. markets will
result in the implementation of access features that will also prove popular. In other cases, what is
learned in providing accessibility for one product can be easily transferred to others without
triggering the "exponential" complications Motorola fears. A product line approach must not
operate so as to limit the inclusion of readily achievable access throughout all products. 
Second, some manufacturers present anecdotes to argue that technological limits make it 
impractical to require that individual products be made accessible.

 For example, in discussing its design matrix, Motorola discusses audio access for people who
are blind or visually impaired: "Adding the voice chip adds a significant number of components 
and software, so it affects current drain, size, component count, cost, memory, etc." [33] The 
concerns may be warranted, especially today, but chip and memory capacity, battery strength 
and component sizes will undoubtedly continue to be reduced and software-based speech is 
already well developed. 

Simple additions to keyboards and keypads can make a product significantly more accessible. 
Further, as suggested above, this is hardly a static market. It is evident that the creativity of 
manufacturers is in fact making it possible to make products accessible to people with different 
disabilities in ways that could not have been imaginable years ago. There is every reason to 
suppose that developments in memory capacity, battery technology and the like will permit 
devices to be used in a variety of ways, by a variety of people, if industry makes that a priority. 

Even if one assumes that full accessibility is not possible in every product, for everyone with 
every disability, it does not necessarily follow that (a) most disabilities cannot be accommodated; 
or that (b) the best approach is to provide accessibility to a few specialized products, rather than 
providing access to a broad range of equipment. The product line approach could be interpreted 
to allow entities covered under Section 255 to escape their duty to continually assess and 
improve the accessibility of their products and services. 

As to the third point, it is not clear how any of the manufacturers would define a product 
line, and hence there is no way to determine how the product line test would be applied. 
Motorola seems to suggest that product lines might be defined as equipment sharing similar 
"features, functions, and price." Similarly, TIA would provide consumers with disabilities "with 
the same general range of choices as non-disabled consumers, such as telecommunications 
functions, features, quality and cost." [34] But, it is difficult to understand how this would
actually be applied. We presume, for example, that every pager would not be considered part of
the same product line since, among other differences, there are clear distinctions between the type
of messages transmitted and the nature of interactivity available. However, the convergence of 
telecommunications functions into a single product (e. g., two-way transmission of voice and text 
messages), would suggest a broad range of potentially ill-defined product lines (assuming similar 
features, functions and price). In any event, AFB could not find a clear definition of what 
constitutes a product line in case law or in the comments submitted to this docket. [35] 

To be sure, it is important to include "features, functionality quality and price" in any 
product line definition. In addition, however, at least three other factors would have to be taken 
into account. Any product line approach would need to recognize that consumers with 
disabilities must have access to telecommunications equipment that is aimed at different market 
segments: the business professional in the office; the executive on the road; general consumer 
use at home and on the road, and so on. Availability should also be a test for whether a product 
fits within a product line --measured in terms of the ability of an individual with disabilities to 
obtain service and repairs or replace the equipment and components of the equipment, and also 
how those equipment and components would function with other equipment and components in 
network environments. Finally, as suggested above, fungibility is an important consideration: is 
the product really equivalent to the inaccessible alternatives? In any case, without a clear 
definition, the "product line" approach leaves the Commission with no clear rule to apply; and 
the "product line approach" as proposed by industry does not provide a clear definition. 
Fourth, a product line approach assumes accessibility will be provided through many 
different "niche" devices, and therefore must assume that industry will guarantee that it will 
maintain production, distribution and support for multiple, accessible products within its line of 
equipment in the market in order to satisfy the accessibility requirements. It seems unlikely that 
this will occur. As a result, if accessibility is incorporated into one piece of equipment in a 
product line, and that piece of equipment is discontinued (or not supported), accessibility would 
disappear for the entire product line. Of course, the FCC could step in and force manufacturers 
to sell particular pieces of equipment --but this seems far more intrusive than requiring 
companies to design for accessibility broadly. 

Fifth, there is no reason to assume that the product line approach, even if it can be 
designed to be effective in enhancing accessibility for people with disabilities, would be any 
easier to apply than the so-called product-by-product approach. The FCC would have to decide 
what products were part of a product line. It would have to determine whether products were in 
fact fungible. The very problems of which the industry complains would still exist throughout 
the design process and across an entire product line. Indeed, it would seem even more 
fragmented and difficult to apply the accessibility and "readily achievable" tests. If a design 
team decided to implement a new feature on a pager that was not accessible, it might then be 
required to design a different product that incorporated that same feature or include the new 
feature in several existing specialized products. In this way, every design change made in one 
(inaccessible) product would actually affect the design of multiple products. The introduction of 
one new product or feature could mandate the simultaneous introduction of multiple new 
products or design changes in several existing products. It is hard to imagine why this approach 
works better on the whole, and it may lead to an unfortunate consequence for people with 
disabilities: accessible equipment of potentially lesser value. The approach contained in the 
Telecommunications Act Accessibility Guidelines established by the Access Board provide 
direction on integrating the planning for disability access into the design process, so that over 
time, solutions will become standardized. That approach seems more likely to lead to greater 
overall strides in accessible design than the product line approach proposed by industry. 
Moreover, the Access Board approach avoids a problem Motorola and TIA never confront. 
Those companies assume that it is better for them to decide the most effective way to provide 
accessibility. Motorola believes it should not have to provide accessibility generally, for 
example, because it believes it will identify the "inherently better" access solutions. [36] 

How will companies in practice determine what products might be inherently better suited? People with 
disabilities occupy every sphere of society with a variety of needs. In fact, the Pagewriter 
mentioned here, or other similar products with highly interactive text transmission capabilities 
are likely to appeal to many people who are blind or visually impaired for the same reasons that 
they are marketed to the mass market. People who are blind or visually impaired do not have an 
"inherent" preference for voice messages, but rather a preference, or need, to be as functional and 
independent and involved in telecommunications as anyone else. However, for people with no 
usable vision, audio output of messages (or transmissions (including synthesized text-to-speech 
are highly important. 

The "we know best" assumptions by some commenters are troubling, particularly since, as 
we have pointed out earlier, some commenters seem to have made assumptions about what the 
visually-impaired can and cannot use that are inaccurate. The statements affirm why inclusion of 
the Access Board's guidelines on including people with disabilities in market research and 
product testing is so imperative. How else will companies begin to learn about the real needs 
and capabilities of consumers with disabilities? 

Finally, the product line approach is problematic because it is not consistent with the 
statute. TIA defends the proposal on two grounds. First, it argues that the term "equipment" in 
the statute could be read to apply to "groups" of equipment rather than individual pieces of 
equipment, and argues that Section 255 obligations can be met by providing access to some 
equipment, and not all equipment. Actually, the provision cannot be read as TIA urges and still 
make sense. If equipment was read in the plural, as TIA urges, then accessibility obligations 
would be satisfied by making any piece of equipment accessible, whether part of a product line 
or not, and indeed, whether available in the United States or not. The plain language indicates 
that all equipment must be accessible within the limits of ready achievability. 

The second prong of the argument advanced by TIA and others points out that industry is 
only required to do what is "readily achievable," and asks the Commission to find that it is not 
"readily achievable" to make each product universally accessible, and to rule that only product 
lines need to be accessible. The argument is supported by suggesting an analogy between access 
to telecommunications products and access to stadiums and theaters, (an analogy the Access 
Board rejected). 

As pointed out above, there is not a factual basis for adopting the broad presumption urged 
by industry. But it is also important to emphasize that the analogy on which the argument relies 
is misleading, and misses a central point of Title III accessibility rules. 

Under Title III, each facility must be accessible -one does not escape obligations by 
pointing out that there is another stadium down the street that could be used. TIA and Motorola 
are apparently arguing that one can discharge obligations with respect to one piece of equipment 
by pointing to another. As important, even if one assumed that "product families" of multiple 
independent pieces of equipment are the analog to a single facility, the analogy would not 
support the approach taken here. The goal in accessibility cases is to make the entire facility 
accessible. The reason not every seat needs to be accessible in a stadium is that seats similar in 
location and sight line are fundamentally fungible. So long as there are seats scattered 
throughout a facility in sufficient number that people with disabilities have options that duplicate 
those available to persons who are not disabled, there is accessibility. Hence the "scooping 
rules" --the rules that define what must be done to make a facility accessible --are intended to 
ensure that individuals with disabilities have the same choices available to them as are available 
to persons that are not disabled, without imposing an undue burden on the facility owner. 
Further, it is a central goal of the rules to provide a fully integrated experience rather than to 
shuttle patrons with disabilities to special corners. Among other things, the rules require that 
areas especially designed to accommodate wheelchairs also include seating for companions who 
are not disabled. [37]
 
As formulated, the product line approach is not analogous to the approach to providing 
access to facilities. The product line approach, at least as proposed, allows manufacturers to 
discharge the access obligations imposed by Section 255 by segregating accessibility across a 
product line. The approach does not necessarily provide equivalent choices to individuals with 
disabilities. By definition, it restricts those choices to defined products which may or may not be 
useable. For example, individuals with disabilities may often find themselves in situations where 
they do not have a choice regarding the available telecommunications products. An employer, 
school or hotel may choose telecommunications products that are, unwittingly, inaccessible to an 
employee, student or guest with a disability. In these circumstances, it is likely that fruitless 
conflicts would persist between Ad's requirements for reasonable accommodation or auxiliary 
aids and Section 255 obligations for accessible products. 

b. Product line may be an effective alternative where accessibility is 
not readily achievable, but it cannot substitute for readily 
achievable accessibility. 

We emphasize that we appreciate the industry's dilemma. A product line approach may 
be the best alternative if full accessibility is not "readily achievable"; but it is not a substitute for 
accessibility where accessibility can be readily achieved. The goal should be to provide 
consumers with disabilities with as many choices as are available to those who do not have a 
disability. It may be that there are other ways to formulate the product line approach that would 
avoid the objections raised by AFB and by others. [38] Indeed, AFB is willing to work with 
industry to explore possible approaches to addressing product line issues in particular cases. But 
at this point, as proposed by industry, it is not a workable alternative. 

2. The Fundamental Alteration Test Does Not Work As Industry Suggests. 
One of the most troubling issues raised by industry revolves around the "fundamental 
alteration" issues that were discussed in part in Part I. B. of these comments. AFB believes that 
in some circumstances, providing accessibility might require a "fundamental alteration" to a 
product, and for that reason, providing accessibility might not be "readily achievable." But we 
do not believe that the fundamental alteration test can be applied quite the way that industry asks 
the Commission to apply it. If the Commission adopted the standard, it would need to make it 
clear that the test applies only on a case by case basis, and only in limited circumstances. 
Industry comments seems to assume that, if providing accessibility in one way would 
involve a fundamental product alteration, accessibility need not be provided at all. The 
fundamental alteration standard really only comes into play when accepting or rejecting a 
particular accessibility solution. It is not a standard that can be used to discharge the obligation 
to seek solutions, or to avoid any modifications. [39] It is typically applied on a case by case basis, 
examining unique facts and circumstances, and considering whether and to what extent 
accommodations could have been made. [40] The fact that one type of change might require a 
"fundamental alteration" does not end accessibility obligations. There is a duty to consider 
alternatives. 

Second, the industry seems to assume that it is permitted to define what would constitute a 
"fundamental alteration." However, the cases cited by industry and at note 36 make it very clear 
that this is not the case. The question of what constitutes a fundamental alteration is a judicial 
one. There must be a clear product objective that is violated, the need for that product objective 
must be documented in terms of the core functions the product, and the effect of departing from 
the product objective – or modifying it to provide an accommodation – must also be 
documented. The mere possibility that accommodation may have some market effect on the 
product is not enough. [41] To take the example of the Nokia 610 discussed supra, the 
"fundamental alteration" test would not permit Nokia to avoid providing accessibility features 
because Nokia also wanted to add simple video games instead of accessibility features, and one 
precluded the other. 

AFB believes that the Commission would be wise not to make the "fundamental 
alteration" test a part of its rules at this stage. However, were the Commission to adopt the 
standard, the Commission would need to properly confine the term so that industry does not 
assume that the test provides a broader exemption than it is intended to provide. 

3. The Cumulative Cost Test Should Not Operate As Industry Proposes for 
Purposes of Determining Whether Accessibility is Readily Achievable. 

Several commenters argue that, in deciding whether accessibility is "readily achievable," 
the Commission must take into account the "cumulative cost" of compliance. These commenters 
are correct that under the ADA "readily achievable" test "cumulative costs" may be taken into 
account in particular circumstances. However, it is less clear that industry is proposing to apply 
the test as it is properly applied under the ADA.[ 42] Under the ADA, the "cumulative cost" test
is applied in a way that permits a facility owner to implement accessibility in steps, after 
establishing priorities for access. The test ensures that in any given years, the burdens associated 
with providing accessibility will not be inordinate, but the test also assumes that access will be 
provided over time. In sort, the test permits a form of "cost spreading." 
If a cumulative cost test were adopted in this context, it would need to be similarly 
confined. It could only apply in cases where a company has actually established a plan for 
providing accessibility over time, and established implementation priorities. In that context, one 
could then apply a cumulative cost test to determine whether, given the steps taken to provide 
accessibility for a disability, more was "readily achievable." [43] 

B. Both For Purposes of Defining Responsibilities Under Section 255, and for Purposes of
Determining Whether Access Is Readily Achievable, the Term 
Manufacturer Must Reach Parent Corporations. 
Several commenters ask the Commission to look only to the corporate division with 
responsibility for producing a product in determining whether a particular accessibility 
modification is "readily achievable." [44] There are at least three reasons why this position must
be rejected. 

First, it ignores practicalities. A solution developed by one division for one product (a 
speaker jack, for example) will typically be useable in conjunction with other products. [45] Each 
product division does not "reinvent the wheel" every time it begins work on a device, nor does 
each division within a corporation maintain exclusive control over innovations, denying other 
parts of the corporation access to new developments. Yet, when it proposes to treat accessibility 
issues on a division by division basis, industry is asking the Commission to assume that 
accessibility solutions must pay for themselves product by product. Solutions that are in fact 
easy for a large manufacturer to implement because they can be used in many products should be 
implemented, and would not be implemented under the industry approach. 
Second, the approach assumes the parent corporation has no role in the "fabrication, 
development and design" of the products that it markets under its name. That claim is not 
supported by the anecdotes in the comments. As the comments make clear, the parent has the 
ultimate control... the power of the purse. It cannot avoid Section 255 responsibilities by 
withholding resources that are available to it. It would be as if a building owner argued that it 
was not readily achievable to install wheelchair access to the bathroom because the "plumbing 
division" only has the budget to fix leaks. That position would be quickly rejected, and so 
should the position of industry urged here. 

Finally, several of the comments ask the Commission to look only to the divisions and 
subdivisions of manufacturing corporations so that large and small manufacturers are treated 
equally under the rules. That request betrays a fundamental misunderstanding of the term 
"readily achievable" as defined in the ADA. The term, as applied and interpreted, does treat 
large and small organizations differently, because what is readily achievable for one may not be 
readily achievable for another. Because the term "readily achievable" is defined in the same way 
as in the ADA, the same result follows here; one cannot ignore the size of the parent corporation, 
as many manufacturers urge. 

As a related matter, several commenters argue that the FCC should only hold 
manufacturers and service providers responsible for matters over which they have "direct 
control." Some commenters, for example, argue that manufacturers have no control over 
software, so that CPE manufacturers cannot be held responsible if their equipment is inaccessible 
because of software deficiencies. (At the same time, these commenters point out that modern 
equipment is software-dependent, so that the software is actually an integral part of the 
product). [46] The "direct control" argument assumes that manufacturers and service providers 
cannot provide for accessibility through the contracting and purchasing processes – a patent 
absurdity. The manufacturer must bear full responsibility for its product. This does not mean 
that others are not responsible under Section 255. In the ADA Title III, context, most courts that 
have considered similar issue concluded that anyone who plays a significant role in the design or 
construction of a facility is held responsible for ensuring accessibility. The same should be true 
here. That ensures that gaps in coverage are not created by finger-pointing (I had no control, that 
person did). The position raised by some commenters ensures the law will not fully protect 
individuals with disabilities. 

III. THE COMMISSION HAS AND SHOULD RETAIN BROAD AUTHORITY TO RECEIVE
AND REVIEW COMPLAINTS, AND TO WORK CREATIVELY TO 
FOSTER ACCESSIBILITY. 
The NPRM properly proposed a method for filing and addressing complaints that was 
designed in part to make it relatively simple to address accessibility issues. In addition, the 
Commission asked whether it would be wise to establish a clearinghouse for information about 
accessibility. Many of the commenters have asked the FCC to establish more rigid rules that 
would limit complaints under Section 255, and discouraged establishment of an information 
clearinghouse. AFB believes that the Commission was on the right track. 

A. The Commission Should Not Adopt Strict Standing Standards. 
Several commenters urge the Commission to adopt rules that would prevent persons from 
filing complaints unless the persons were disabled, or representing individuals with disabilities. 
The Commission should not adopt standing requirements. The main reason proffered for 
developing standing requirements is to discourage competitors from using the complaint process 
to obtain information about competitors' products or processes. However, that problem can be 
addressed on a case by case basis, if a manufacturer believes a particular complainant has no 
particular interest in filing a complaint. As AFB pointed out in its initial comments, there are a 
wide range of organizations that may have a legitimate interest in filing complaints. Employers 
have independent ADA obligations; they may have an interest in filing complaints because the 
availability of accessible communications devices may help them satisfy their own obligations. 
Indeed, we suspect that allowing employers to file complaints may be the one of the best ways to 
encourage compliance. As AFB also pointed out, there may be cases where one manufacturer or 
service provider could provide accessible equipment or services, but cannot because another 
company has failed to meet its obligations. Allowing companies to file complaints will actually 
allow the Commission to determine who is responsible for inaccessibility, and may avoid 
unnecessary consumer complaints. Thus, consumers, other manufacturing and service 
companies, employers, and non-profit organizations representing any of these groups have 
legitimate interests in assuring that Section 255 requirements are satisfied. Accordingly, 
adoption of a standing requirement as proposed by commenters at this juncture would be
ill-advised. 

It is not legally required. Typical standing cases involve instances where Congress has 
restricted the universe of parties who may file a complaint. In the absence of a
Congressionally-mandated standing requirement, the most that is required is that complainant
have an interest in the dispute. The Commission's decision not to impose a specific standing
requirement merely reflects the obvious point that there are many people (besides individuals with
disabilities) who have an interest in assuring that services and equipment are accessible. These not
only include the associations, industries, manufacturers and others discussed above. It also
includes the friends, relatives and colleagues who may wish to communicate with individuals with 
disabilities. It was therefore entirely appropriate for the Commission to ensure that all those who 
benefit from the effective implementation of Section 255 have the opportunity to file complaints. 

B. The Commission Could Adopt a "Statute of Limitations" On Filing Complaints, But It Would
Have To Be Carefully Tailored, and Is Probably 
Unnecessary. 
Several commenters proposed that the Commission adopt a statute of limitations on 
product complaints. However, the comments fail to recognize that there may be very good 
reasons why a complaint is filed long after a product is purchased. For example, a manufacturer 
may offer an upgrade to existing equipment where the upgraded functions are not themselves 
accessible, or where the upgrade renders existing functions inaccessible. The Commission's 
regulations need to recognize that accessibility issues may develop during the life of a piece of 
equipment. 

Any limitations period would have to apply (a) from the time the consumer purchased the 
product; (b) to a product that has not been affected by any company upgrade or alterations; (c) 
that has not been affected by any change in networks, other equipment or services. It would 
have to be for a period that is long enough to allow the consumer to gain familiarity with the 
device, and to determine, without filing a complaint, whether it is useable or not. As a practical 
matter, however, it is not clear that a limitations period is actually necessary. The concerns of 
the manufacturers could largely be satisfied, and the Commission could avoid foreclosing 
legitimate complaints, by requiring a complainant who files more than two years after a piece of 
equipment is purchased to explain why the filing was delayed. [47] This may focus the complaint 
and result in "weeding out" truly frivolous complaints. 

C. The Commission Should Establish An Information Clearinghouse. 
For reasons that are not entirely clear, several commenters oppose any efforts by the 
Commission to establish a compliance clearinghouse. We believe that a clearinghouse should be 
established. The information provided by the Department of Justice at its website provides 
critical information both to companies that are seeking to understand their obligations, and 
consumers who wish to understand their rights. Having a clearinghouse for Section 255 
information generally available will allow the Section 255 process to function more smoothly 
over the long haul. 

D. Damages Are An Important Compliance Tool and Are Available. 
In its NPRM, the Commission tentatively concluded that damages were available to 
remedy failures to comply with Section 255. Several commenters – most notably Ameritech – 
argue that damages are not available under the Section 255, because that Section 255( f) (" No 
Additional Private Rights Authorized") states that "nothing in this Section" shall be construed to 
authorize a private right of action to enforce any requirement or regulation. The Commission 
was right. The "no private right of action" language appears intended to prevent the courts from 
implying that individuals with disabilities have an independent right to commence a court action 
under Section 255, but both the title of the Section (referring to additional rights) and the 
language of the section (referring to nothing in "this Section" rather than nothing "in this Act") 
indicate that Congress did not intend to limit other existing remedies, including damage 
remedies. Thus, Section 206, 207 and 209 of the Communications Act make carriers liable for 
damages for violation of the Act, permit complaints to be filed with the Commission, and permit 
the Commission to award damages based on those complaints. Contrary to Ameritech's 
argument, these provisions provide ample authority for the award of damages to persons injured 
by violations of Section 255. [48] 


E. The Burden of Proof Must Fall Upon Equipment Manufacturers and Service Providers. 


Some commenters would place the burden of proof under Section 255 on the 
complainant. [49] This is clearly inconsistent with the statute, and it is impractical as well. Under 
the statute, the legal mandate is for accessibility --the "readily achievable" standard is a defense 
against a failure to provide accessible equipment and services. To put it another way, it is not up 
to the individuals with disabilities to prove that he or she is entitled to accessibility; it is up to 
manufacturers and equipment providers to provide accessible services and equipment unless 
access is not readily achievable. [50] This result is logical. Whether accessibility is readily 
achievable will be determined on a case by case basis, considering factors unique to each 
manufacturer or service provider. It is only the manufacturer and the service provider that will 
be in a position to show that accessibility was not readily achievable, and it is therefore on those 
entities that the burden of proof should fall. Any other approach will render Section 255 a dead 
letter, because (except in the most obvious cases) complainants cannot be expected to be able to 
show what is and what was not readily achievable. 

As a related matter, several commenters ask the Commission to adopt an inordinately 
complex cost standard for determining whether accessibility is readily achievable. It is not even 
clear that the analyses that are proposed (consideration of opportunity costs, for example) could 
actually be performed in any sensible way, since the analysis by definition depends on untestable 
assumptions about consumer responses to products that have not been built and exposed to the 
marketplace. In any case, the standards the industry has proposed require the Commission to 
undertake an analysis at least as complex as that involved in rate of return ratemaking – and that 
process is hardly designed to lead to rapid resolution of complaints. [51] As AFB has proposed in 
its initial comments, the FCC must adopt standards that it can apply; the standards that the 
industry has proposed cannot be applied, and certainly cannot be applied in any manner that 
would result in accessibility within a reasonable period of time. 

IV. ADOPTION OF THE ACCESS BOARD GUIDELINES AND CONTINUED
EXAMINATION OF CURRENT REGULATORY AND STATUTORY 
REQUIREMENTS PERTAINING TO INFORMATION SERVICES ARE CRITICAL TO
PROVIDING ACCESSIBILITY. 

A. Adoption of the Access Board Guidelines Will Encourage Innovation and the Free Flow of
Product Information. 
As a more general manner, industry has argued that if the FCC adopts the rules proposed 
by the Access Board, as proposed in the NPRM, innovation will be stifled and product 
information will not freely flow. 

As the comments suggest, there is no reason to suppose innovation will be stifled. While 
the guidelines require industry to take a new approach to design, the actual language of the 
guidelines encourages innovation. Moreover, because the obligations are clear (unlike the 
guidelines that TIA has proposed as an alternative) they should encourage development of new 
products that incorporate accessibility features as a matter of course, as opposed to efforts to 
create segregated and specialized equipment. 

There is also no reason to suppose that the free flow of information will be discouraged. 
TIA seems to posit that only under its guidelines would a manufacturer advertise that a product is 
accessible by promoting its access features. Why this is so hard to discern. Under the Access 
Guidelines, one could advertise the accessibility features that do exist (accessible for the hearing 
impaired, etc.), but could not make broad claims about universal accessibility. That is, 
information would have to be provided in a meaningful format. To put it another way, the 
Access Board guidelines not only provide a useful model for planning a product, the guidelines 
provide a useful way for consumers and manufacturers to describe product features. 

B. To Provide Continuing Protection for the Disabled, the Commission Does Need to Continually
Reexamine Its Treatment of Information and Telecommunications Services. 

In its working paper, "Digital Tornado: The Internet and Telecommunications Policy" the 
Commission pointed out that public policy questions arise from the need to maximize the public 
benefits that the Internet brings to Society. [52] The paper goes on to state: "Government policy 
approaches toward the Internet should therefore start from two basic principles: avoid 
unnecessary regulation, and question the applicability of traditional rules." [53] 

We believe that the paper is on the right track and the Commission should continue this 
examination... including its examination of the relation of the Internet and telecommunications 
services. One example of the new direction for telecommunications services is illustrated in a 
recent report that British Telecom and AT& T will abandon circuit switching in favour of a 
system called internet protocols (IP). This is a method of transmitting data efficiently and at 
high speed without tying up any particular pathway. ..." IP has established itself as the key 
design point or architectural force for the 21st century network the partners say." The article 
continues: "With the new network in place, staff could have access to the same services 
anywhere in the world simply by plugging into a phone socket and dialing a local number." [54] 

It is the seamless nature of the new regime of telecommunications services which will 
allow this example to work so well. The observations about these services in the comments filed 
by representatives of the disability community make the continuation of the Commission's task 
even more urgent, especially within the context of Section 255. SHHH points out that: 

As services merge, the distinctions between enhanced, basic and adjunct to basic 
are superficial at best. Communication via technology, in whatever form, whether 
phone calls over the internet or e-mail received on a phone handset, must be 
governed by Section 255 if access is to be achieved in the manner it was 
intended. 55 

The National Association of the Deaf correctly asserts: 

... it cannot be more obvious that access to advanced service features is basic in 
purpose and use for individuals with disabilities. This holds true for interactive 
and audiotext telephone services as well as for other services labeled as enhanced 
such as voice mail and electronic mail. [56] 

Communications technologies have converged or are converging into powerful, multi-purpose 
and flexible telecommunications devices and services. These devices combine 
numerous communication and information storage functions previously accomplished separately. 
The ability to use this technology is rapidly becoming the new literacy challenge for people who 
are blind or severely visually impaired. The Commission will not be able to separate these 
functions, and does not need to do so. The mandate to ensure that "telecommunications 
services," "telecommunications equipment" and "customer premises equipment are accessible 
provides ample authority for protecting individuals with disabilities as AFB and others in the 
disabilities community have pointed out. It is critical that the Commission exercise that 
authority. 


CONCLUSION 
The NPRM properly proposed to adopt Access Board Guidelines and to establish other 
rules designed to implement Section 255's mandate. That mandate requires affirmative action to 
ensure that products and service are accessible to individuals with disabilities. While the NPRM 
needed to be strengthened, as AFB and others pointed out in initial comments, it was headed in 
the right direction. In many respects, the modifications proposed by industry would effectively 
render Section 255 meaningless. Those proposed modifications must and should be rejected. 


Respectfully submitted, 


Joseph Van Eaton 
MILLER & VAN EATON, P. L. L. C. 
1155 Connecticut Avenue, NW 
Suite 1000 
Washington, DC 20036 
(202) 785-0600 
Paul W. Schroeder 
Director, AFB Midwest/ National Technology Program 
American Foundation for the Blind 
401 N. Michigan Avenue, Suite 308 
Chicago, IL 60611 
(312) 245-9961 


Alan M. Dinsmore 
Senior Governmental Relations Representative 
American Foundation for the Blind 
820 First Street, NE, Suite 400 
Washington, DC 20002 
(202) 408-8171 


Scott Marshall 
Vice President, Governmental Relations 
American Foundation for the Blind 
820 First Street, NE, Suite 400 
Washington, DC 20002 
(202) 408-8172 
June 30, 1998 AFB-7016\ 01-Genl\ AFB-Reply Comments Dkt. 96-198v4. doc 

APPENDIX A 
REPORT OF LEONARD R. KASDAY, Ph. D 
ON TIA COMMENTS FILED IN 
RESPONSE TO NPRM IN WT DOCKET 96-198 


BACKGROUND OF DR. LEONARD KASDAY 
Dr. Kasday is an engineering specialist at the Institute on Disabilities/ UAP at Temple University. 
He previously had 20 years experience in user interface design at AT& T (AT& T Labs, Bell 
Labs, and American Bell), where he worked on Internet services, web accessibility standards, 
telecommunications relay service, VRML data display, speech controlled communication 
systems, artificial intelligence, medical picture and data communication, rapid prototyping, and 
office automation. He is chair of the Evaluation and Repair Interest Group in the World Wide 
Consortium's Web Accessibility Initiative. Dr. Kasday received his Ph. D. and Physics and M. S. 
in Electrical Engineering from Columbia University, and pursued 5 years of post-doctoral 
research in Experimental Psychology at Columbia University and New York University. 
He holds 9 patents in the areas of user interface, communication, and disability related 
technology. 


SUMMARY OF REPORT 
As noted in the FCC NPRM, there is a wide range of opinions on whether Section 255 should 
apply to particular products or to groups of similar Products. TIA and others have argued that it 
should apply across a product line. 

In my opinion, 255 should apply to individual products, in view of the following 
considerations: 

1. New technology trends which, if properly exploited, would greatly reduce the cost of 
accommodation. 

2. The many cases where the effort is minimal because of the simplicity of the 
accommodation. 

3. The reduced time to investigate one a product once results of investigating other, 
similar products have been obtained. 

4. The many disadvantages of having just a few isolated accessible products. 
5. The additional problems caused by combining a product line approach with TIA's 
proposed accessibility test. 

6. The additional problems caused by combining a product line approach with a 
"retrospective" approach to accessibility. 

Note also that the additional factors mentioned in items (5) and (6), viz. TIA's 
proposed Accessibility test, and the "retrospective" approach to accessibility, 
are problems in themselves, as discussed below. 

DISCUSSION 
I'll now discuss these points in more detail. 
1. New technology features which, if properly exploited, reduce the cost of accommodation. 
Accommodation is often discussed as if accommodating each new product is a new, individual 
effort, making it necessary to restrict accessibility to just one or a few members of a product line. 
This is countered, however, by a number of relevant trends, most of which have long existed in 
personal and laptop computers, and which are appearing in devices even as small as pagers. 

a. Programmability. 
Devices are being designed with spare memory (either battery powered RAM, or Flash memory, 
which requires no power for storage). Accessibility features can potentially be loaded into this 
memory, eliminating the need to add memory, cost, and battery drain to the base version (i. e. 
non-accommodated version) of a device (although a person with a disability may want to add 
memory to load other programs). Thus, the interaction of access features with memory and 
battery life for the base product is eliminated. Programmability is of course inherent in all 
desktop and laptop personal computers. It is also appearing or planned to appear in platforms 
suitable for smaller devices such as personal digital assistants, cell phones, and pagers. One of 
these systems, Sun Microsystems' Java, provides a "pluggable look and feel" which, as they 
point out, could allow, e. g., an audio menu to replace a visual one (a feature of potential value to 
non-disabled users as well). Other programmable systems such as Palm Pilot, Windows CE, 
Psion, and Motorola's FLEX, have also designed to range of user needs (although accessibility 
has not been explicitly addressed). For example, Motorola's FLEX platform Whitepaper (v. 1.0, 
September 1997, p. 5), speaks of "the needs of specific individual lifestyles" and describes the 
FLEX system as 

"designed specifically to enable `soft' products that can be easily upgraded 
to meet these user needs while at the same time being optimized for small 
communicators." 

We have therefore the opportunity to extend this approach to accommodate the needs of many 
people with disabilities, in a readily achievable manner, without compromising the features 
needed to manufacture competitive devices, or restricting access to just a few members of a 
product line. 

b. Multimedia capability. 
Many desktop and laptop computers, as well as platforms for smaller devices (e. g. Java, 
Windows CE) have audio input and output built in. This permits some degree of speech 
recognition and text to speech to be added via software alone, without the cost of adding 
specialized "speech chips". General text to speech and speech recognition devices are already 
commonly available in desktop and laptop computers. It should be possible to add at least simple 
recorded speech to small devices (e. g. the numbers 0 through 9). This minimizes the need to 
restrict access to just a few "speech capable" members of a product line. 

c. Communication between devices. 
Communication between devices, using serial cables and infrared links (e. g. using the IRDA 
standard) are becoming more widespread. Both are common in desktop and laptop models, and 
IRDA is already appearing in many smaller devices (e. g. Java, Nokia, Windows CE, FLEX). 
These links could potentially provide an interface to accommodation devices for compatibility 
(as required by the Access Boards Connectivity requirement 1193.51). It would also permit 
audio output without audio speaker jacks (an accommodation which, in Motorola's experience, 
can add significantly to production cost). For example, digital speakers are already available 
which connect to the USB (Universal Serial Bus). Suitable modulation of an infrared output 
would also drive the IR wireless headphones now available in the consumer market. 

d. Standardized user interface objects. 
Software platforms typically provide the software developer with a standard set of user interface 
"objects" such as menus, text entry fields, etc. Once these objects are made accessible, 
applications using the objects gain accessibility with little or no additional effort. Microsoft's 
"active accessibility" (AAA) provides a software interface between the objects and accessibility 
software such as screen readers. AA is available in their desktop and laptop versions of 
Windows 95, 98, and NT (although it is not now available for the CE version used in smaller 
devices). Sun's Java System has such an interface built-in, plus, as noted above, a means for 
"direct accessibility" by allowing the objects to be realized in various ways, e. g. a menu could be 
rendered visually or audibly. 

I've discussed these objects in the context of programmable devices; but their use is simply good 
engineering practice which can be expected in non-programmable devices as well. 

The existence of these user interface objects counters the argument that providing access for each 
individual product is a new, individual effort. Once standard software objects are used and 
accessibility is provided for those objects, all products inherit the access features with little 
additional work. 

It is crucial therefore for accessibility of user interface objects to be built in to all platforms. It 
should include means to interface to accessibility software and hardware, and also options for 
direct accessibility. 

e. Preferences. 
Software platforms typically have facilities for users to set standard preferences (e. g. colors, font 
size), plus preferences specialized to an application. This also reduces the cost and effort needed 
to provide settings needed for accessibility. And the provision for adding application specific 
preferences would reduce the software overhead needed to e. g. disable or change timeouts. 

Another way to control preferences is available if updates to a program are available via 
download e. g. into Flash memory. The user could download different versions (e. g. with 
timeouts disabled). This would eliminate the need to have a way of changing preferences on the 
device. 

The flexibility offered by the ability to set preferences minimizes the need to restrict access to a 
limited number of products in a product line. 

2. Many cases where the effort to include accessibility is minimal because of the 
simplicity of the accommodation. 

I'll now discuss some additional objections to the arguments about the cost and difficulty of 
accessibility. These do not depend on the technology trends mentioned above. 

Manufacturers are understandably concerned about accommodations that require extra memory 
or other chips to a very small device, such as speech recognition and synthesis (although, as 
noted above, these capabilities can be added to some systems with no extra hardware at all). 

But some design efforts are surely often quite small, e. g. a nib on the 5 key or options to turn off 
flashing and timeouts, which should require only a minimal amount of code. 

And there are other accommodations which don't appear in the table which would have 
negligible impact on design efforts. For example, to accommodate people who are blind, if a 
device has a strip of membrane buttons which a blind person cannot detect, the device's case can 
be molded with a raised border around the button strip and dots or other tactile cues marking 
each button. Or if the device is toggled on and off by a button that normally beeps only once 
when pressed, the device could be made to beep twice when toggled on. To accommodate 
people with vision impairments, labels could be designed with high contrast to be more easily 
seen, either directly or through a magnifying lens. 

To accommodate people who are deaf, if a device already has a screen or visual indicator (e. g. 
LED), audible signals (e. g. error beeps) emitted during operation can be accompanied by a visual 
indication. To accommodate people with limited dexterity, simple software features can be 
provided that e. g. turn off autorepeat or allow someone to press two buttons sequentially instead 
of simultaneously. 

All these accommodations would have little or no interaction with the attributes of cost, size, part 
count, battery life, etc. All they require is to consider and incorporate low cost or no-cost 
features or design decisions: 

a. in the physical design (e. g. tactile features in the molding) 
b. in the software. 
The software features are particularly inexpensive when the trends described in section 1 above 
(programmability etc.) are available, and would be of minimal cost even when the device is 
hard-coded (e. g. providing an extra beep). 

Of course, the impact of these features must still be accounted for, and systematic approaches 
like the interaction matrix suggested by Motorola can be useful representations of the 
interactions. But it must be kept in mind that many interactions, like the ones described above, 
are orders of magnitude smaller than the types of interactions, like adding speaker recognition or 
synthesis, that cause the greatest concern. 

3. Knowledge gained investigating accommodations for one product will lessen the time to 
investigate the next product, especially if the products are similar. 

This point was made above in connection with the use of standard user interface objects in 
software design. The point is more general. Experience and knowledge gained investigating 
accommodations for one product will generally carry over to other products. Arguments that 
imply that effort must be duplicated for each product investigated don't take this into account. 

4. The disadvantages of having just a few isolated accessible products. 
TIA and others argue for a product line approach to compliance. Motorola, for example, asserts 
that some products are inherently more suitable to particular disabilities. This is indeed 
sometimes true. It does not therefore follow, however, that only the products thought to be most 
suited for a disability need to accommodate that disability. 

There are a number of disadvantages to limiting accommodation in this way: 
a. Providing different products for different disabilities fails to accommodate people who 
have more than one disability. 

b. The provided product could tend to be a more expensive model, having features like 
speech storage or synthesis, which aren't always needed for accommodation. For 
example, a manufacturer might have an inexpensive wireless phone with the on/ off 
toggle feature, described earlier, that only requires an extra beep to make it accessible. 
However, instead of simply adding that beep to the simple model, the manufacturer 
would require the blind consumer to buy a more expensive, deluxe model that had e. g. 
recorded speech prompts for all functions. 

c. If there are different models in a product line, they are tailored to differing user needs, 
including needs unrelated to disability. Adapting only one model for each disability 
deprives the disabled customer of the choices available to other consumers. 

d. An employer, e. g. a small business, that already had equipment for employees that didn't 
happen to accommodate a new employee, would have to buy new equipment to 
accommodate the disabled employee. It might also add to the cost of supporting the 
disabled users, since they would have a different models, and would require different 
training. Special procedures might also be needed for the disabled employee because 
she or he would be using a device with different capabilities. 

e. A non-disabled person, who became disabled, and who already owned equipment would 
incur the cost of buying new equipment if the model he or she already owned didn't 
happen accommodate his or her disability. 

f. A person visiting e. g. a hotel that provides telecommunications in guests' rooms would be 
less likely to find that the equipment met his or her needs. Thus, offering only one 
accommodated product model per product line to accommodate disabilities has many 
disadvantages compared to making all models as accessible as can be readily achieved. 

5. Additional problems created by TIA's proposed accessibility test. 
The FCC NPRM (paragraph 73) proposes to define accessibility 
"in the broad sense to refer to the ability of persons with 
disabilities to actually use the equipment or service by virtue 
of its inherent capabilities and functions." 

In the context of this definition, the recommended functions in the Access Board Guidelines 
(NPRM paragraph 74) are "part" of the definition (paragraph 75). 

TIA, in contrast, proposes to use the Access Boards guidelines 
"to identify those product features that enhance the 
accessibility of products for persons with disabilities." 

It appears that with this approach, the manufacturer simply notes the features, and leaves it up to 
the consumer to decide if the product will be accessible. 

There is indeed value in providing the consumer with information in this way. However, this is 
not sufficient. 

One problem with this approach is that it only requires, for each function, that there be one mode 
in which the requirement is provided, and it examines modes independently. For example, it 
requires one mode with controls that are accessible to people with low vision, and at one mode in 
which the information display is accessible to the same people. But the modes are not 
necessarily required to be the same or to work in conjunction. So a person with low vision might 
find that while the display was accessible in one mode, the controls were accessible only in 
another mode. So the device would be unusable by people with low vision, even though it would 
seem accessible when the TIA's accessibility methodology was applied. In addition, this 
approach does not address the needs of people who have more than one type of disability. 
The difficulty would be compounded if this definition of accessibility were to be combined with 
a product line approach to accessibility. Taken together, these could lead to patchwork of 
accessibility features, where one feature is found in one mode of one product, a second feature is 
found in another mode of that product, and a third feature is found in a different product 
altogether. It could well be difficult for the user to find a full set of access features working all 
together in a single mode of a single product. And even if the user did find the right 
combination in a product, it might not be a product that met his or her other needs as well as a 
different member of the product line. 

Another difficulty with this approach is that once a manufacturer found a mode of a product 
providing a function, that manufacturer would no longer be incented to examine other products 
for the same function. This means that very simple opportunities for access, like an extra beep or 
a raised dot, which could make the difference between a product being usable or not, would 
never be found. 

Therefore, it is not sufficient to simply "check off" features or consider them in isolation. Actual 
usability by persons with disabilities must be evaluated, as proposed in the FCC NPRM, and all 
products must be examined. 

6. The additional problems caused by combining a product line approach with a "retrospective" 
approach to accessibility. 

Products and product features developed for the general market are sometimes useful to people 
with disabilities, even though there was no consideration of access when the product was 
designed. Companies often look retrospectively at existing products to identify, document, and 
publicize such features. These are valuable efforts, which should be applauded. However, we 
must be careful to avoid relying on this "retrospective" type of accommodation. It would 
compound the problem noted above of a patchwork of access features across product lines and 
product modes. Features emerging from a retrospective study are likely to be even more 
randomly distributed, and less likely to appear together in a single mode of a single product. 

For example, consider a caller id with speech announcements included for the convenience of 
sighted users. The device could easily be unusable for lack of a feature that told the user when it 
was on or off, even though other products made by the same manufacturer had that needed 
feature. This is an example of an accommodation of negligible cost that would likely become 
obvious in the simplest usability study, but that could easily be missed using the procedures TIA 
proposes. 

The full and detailed information that TIA proposes to give the customer would be valuable. 
However, it is not sufficient: access must be considered throughout the product development 
cycle and the criterion for success must be actual usability, as the FCC NRPM states. 





FOOTNOTES

1 See, e. g., Strategic Policy Research Evaluation of the Access Board's Accessibility 
Guidelines. 

2 TIA Comments at 2-3; CEMA Comments at 13; Multimedia Telecommunications 
Association (" MTA") Comments at 10, 12. 

3 TIA Comments at 32 

4 Motorola's comment is more persuasive as an argument against the Motorola/ TIA tests 
than it is convincing as a reason for reading the term "readily achievable" to mean that 
accessibility is not required at all unless a device can be made totally accessible. To take the 
Pagewriter 2000 as an example: if the output were accessible to the vision-impaired, it might 
remain an extremely attractive product even if the keyboard input devices were not fully 
accessible, particularly given the ability of the device to generate preprogrammed responses, and 
the ability to dock the device to PCs and MACs, as described on the exhibits to the Motorola 
Comments. As pointed out above, simple additions to keep might make the keyboard accessible, 
but other limitations might be overcome by returning pages using a cellular or pay phone. 
Except in very limited circumstances (where two products are truly entirely fungible), making a
device accessible increases choice for individuals with disabilities. That is one of the goals of
disabilities legislation. 

5 Motorola Comments at 17. 

6 As pointed out infra, the Commission does not have the authority to read the statute to 
apply to "groups" of equipment. In this section, we will assume for the sake of argument that it 
does have that authority. 

7 Motorola Comments at 7-8; 21-22. 

8 Motorola Comments at 41-42; TIA Comments at 47-50. 

9 Independent Living, 982 F. Supp. at n. 42. 

10 CEMA Comments at 12; USTA Comments at 9-10; Multimedia Telecommunications 
Association Comments at 9. Not much better is the approach urged by TIA, under which the 
Commission is urged to adopt a "cost recovery" formula that would be almost impossible to 
apply in any sensible way, see infra. 

11 Indeed, the "group equipment" argument made by Motorola and TIA necessarily 
requires this result. Under this theory, the obligations of Section 255 are satisfied for all 
equipment by making some equipment accessible. It follows that the cost of accessibility is 
properly shared across the entire market for consumer electronics equipment and services, and 
not as special charges for particular devices. More to the point, because accessibility is a 
required feature of equipment, no different than the requirement that the equipment comply with 
applicable safety codes, there is no reason to allow some sort of separate "accessibility" charge,
any more than one permits a manufacturer to charge a consumer a "safety" surcharge for the
privilege of including standard gear that prevents electrocution. 

12 See, e. g., CEMA Comments at 8-9.

13 "Motorola Creates New Division to Focus on Integrated Information and Communication 
Services for Consumers," Motorola Press Release, August 4, 1998, available at 
http:// www. mot. com/ General/ Press/ PR980804. html. 

14 47 U. S. C. §153( 43). 

15 Some commenters suggest that the FCC has drawn a hard and fast line between 
telecommunications services and information services. As the AFB's initial comments suggest, 
that is not the case; the FCC has indicated the lines between the services do change. What is
more, a hard and fast line is inconsistent with the statute, which recognizes that some "information 
services" may be treated as telecommunications services based upon the functions served. See, n. 
19, infra. 

16 The ADA reflects a basic judgment that providing accessibility is not simply a matter of 
providing special facilities for individuals with disabilities that separate 
individuals with disabilities from others in the community. Hence, the 
nondiscrimination provisions of Title III of the ADA (which requires removal of barriers to entry
if readily achievable) are intended to provide equal opportunity to participate and equal
opportunity to benefit "in the most integrated setting" appropriate. ADA Title III Technical
Assistance Manual Covering Public Accommodations and Commercial Facilities, Department of
Justice, atIII-3.1000. Similarly, given the explicit statutory adoption of ADA terms in Section
255, the goalshould be to ensure access to the same networks and equipment that are available to
others, to theextent possible. 

17 CEMA Comments at 8-9. 

18 Similarly, there is no way for the Commission to develop a "core features" checklist as 
urged in the Comments of the Multimedia Telecommunications Association (" MTA Comments")
at p. 9, because such a list assumes the features do not change. 

19 By contrast, the definition of "information service" makes it clear that an information 
service is not to be treated like an information service when it is used "for the management, 
control, or operation of a telecommunications system" or the "management of a 
telecommunications service." 47 U. S. C. §153( 20). Hence, the fact that a service may, in the 
abstract, be considered an information service in some settings does not in itself determine
whether the service must be accessible. 

20 CEMA Comments at 9. CEMA also requests that the Commission limit obligations under 
the "telecommunications services" standard to "common carriers." The statute on its face is not so 
confining.

21 Common Questions: Readily Achievable Barrier Removal, Americans with Disabilities Act 
Technical Assistance Updates from the U. S. Department of Justice at 9 (August, 1996)(" Barrier 
Removal Update"). 

22 TIA Comments at 80-81. TIA for example, acknowledges the processes are complex, but 
discourages the use of outside experts to investigate them. 

23 Because manufacturers are required to "ensure" that equipment is accessible, and service 
providers" are required to "ensure" that services are accessible, it is not enough for industry, or
the Commission, to rely on market forces to achieve accessibility. Congress has decided that 
affirmative actions are required. 

24 TIA Comments at 28-29. 

25 Among other things, for example, the various members of the industry propose that (1) the 
Commission adopt a complex economic formula based on detailed analysis of a company's assets, 
opportunity costs and financial records; (2) the Commission permit only circumscribed discovery 
of this information; and (3) the Commission require the complainant to carry the burden of 
showing that accessibility was readily achievable. 

26 See, e. g., Motorola Comments at 33-35. 

27 In the MTA Comments at 21, the MTA argues that this should be the rule. MTA states that, 
in response to a complaint, it is enough if a manufacturer responds "it wasn't readily achievable for 
me, because any available resources were focused on other priorities."

28 There is nothing startling about this proposition. The types of modifications that have been 
considered "readily achievable" under Title III also involve trade-offs that may affect the 
"features" offered by a public accommodation (provision of fewer stadium seats to accommodate 
wheelchairs, for example). We emphasize that we are not arguing that accessibility must come at 
the expense of any feature, just as in Title III, accessibility need not be provided no matter what
the impact. Whether a particular trade-off was warranted or whether an alternative was available
that could have been implemented without fundamentally affecting the marketability of the
product can be considered in determining whether accessibility was readily achievable. However,
given the MTA proposals, we believe some affirmative statement is needed to make the matter
clear. 

29 This approach is consistent with the approach taken in implementing the "readily 
achievable" standard in other contexts. In the Barrier Removal Update, for example, the 
Department of Justice points out that while the goal is to remove all barriers, the department 
recommends establishment of "priorities for removing barriers" so that what can be accomplished 
is accomplished. Similarly, here, the planning process should be designed so that it examines 
accessibility issues broadly, and then results in accessibility to the extent possible. 

30 Dr. Kasday is an engineering specialist at the Institute on Disabilities/ UAP at Temple 
University.

31 Motorola Comments at 32-33.

32 "The Best Wireless Phone on the Market," Business Week, August 10, 1998 at p. 60 tells 
the story of the Nokia 6100. "Developers built in rudimentary voice-recognition for Asia, where 
keyboards are problematic, and raised the ring volume so the phone could be heard on crowded 
Asian streets." 

33 Motorola Comments at 32. 

34 TIA Comments at 19. 

35 For example, TIA also offers at least three other definitions for product line, each with 
vastly different import. At page 12, it says the products must be "similar." At page 12 it also 
suggests a product line consists of "functionally equivalent, comparably priced" products 
accessible to these with differing disabilities. At page 17, the test is said to require a 
"representative sample of accessible products." If one looks outside the telecommunications 
context, one can find other efforts to define "product line." One case, for example, suggests that a 
product line consists of products that are "functionally interchangeable" with similar "physical 
characteristics" and aimed at the same consumer market. A. G. Spalding Bros. Inc. v. F. T. C.,
301 F. 2d 585 (3d Cir. 1962) (distinguishing toy footballs, professional quality footballs and
recreational equipment). But we have been unable to locate a uniform definition of "product line."

36 Motorola Comments at 11.

37 In Independent Living, for example, the court concluded that Portland's Rose Garden had 
been designed to place patrons who use wheelchairs in an area that had been designed for 
equipment storage and spillover during sell-out games. Seat sectors had apparently been 
gerrymandered so that individuals with disabilities had a choice of seats at different prices, but all 
oddly segregated into less desirable locations. Even though there was access to the "product line" 
of seating offered, the experience offered to the audience members with disabilities was in no way 
comparable to the experience and opportunities offered to those who were not disabled. 

38 This is to be contrasted with the untenable suggestion (by CEMA at pp. 13-14, for 
example) that a manufacturer be permitted to avoid its own obligations under the law by showing 
that a product that is accessible can be purchased from someone else. The obligations of the
statute run to every manufacturer and every service provider; the obligation is for each
manufacturer to provide accessible equipment, and each service provider to provide accessible
service; the "readily achievable" test is not, in other words, a "readily available" test. 

39 As an example of the fundamental alteration issue, the TIA Comments at 49 suggest that a 
cellular handset that also functions as a vibrating pager with caller ID might be developed for 
people who work on noisy shoproom floors. TIA further assumes that building a zoom feature
into the device (so that it is accessible to those with impaired vision) would delay the speed with
which a message could be displayed when the zoom was operating -making the device unusable
for emergency situations and therefore fundamentally altering the uses to which the device could
be put. However, the hypothetical assumes that the zoom feature cannot be enabled or disabled
with a simple switch -an assumption that is hardly obvious. Further, it assumes that the delay
caused by the zoom feature would in fact render it unusable for emergency situations --again a
presumption that cannot be made under a proper application of the fundamental alteration test. 

40 One of most notorious recent applications of the standard is discussed in Martin v. PGA Tour, 
Inc., 994 F. Supp. 1242 (U. S. D. C. Or. 1998). In that case, the PGA claimed that allowing a
player to ride a cart rather than walk the course would "fundamentally alter" the professional golf
match. The court accepted the PGA's claim that walking was required to add a physical dimension
to the game. But the court emphasized that the fundamental alteration test requires a case by case 
application, and in the particular case, concluded that the change required to accommodate Martin 
would not so change the physical dimensions of the game as to fundamentally alter it. 

41 Installation of wheelchair seating affects the total number of seats available in a stadium 
and hence may reduce revenues by millions of dollars, and may affect the ability of persons who 
are not disabled to sit where they want. Despite these impacts, the seating requirement does not 
"fundamentally alter" the stadium. 

42 It is not clear that the test applies across disabilities, but we assume for purpose of argument 
it could. 

43 See Kasday Report, Appendix A. 

44 CEMA Comments at 12. TIA Comments at 50. TIA states that it has no objection to 
considering the parent's resources under some circumstances, but argues this should be a
case-by-case determination. To the contrary, because the parent is legally responsible, and for the
reasons stated infra, the presumption the FNPRM makes in favor of including parental resources
is appropriate. 

45 See Kasday Report, Appendix A. 

46 The importance of treating software as part of the equipment is underlined by the Kasday 
Report. 

47 At least one commenter asked the Commission to adopt a six-month statute of limitations. 
That would be self-defeating, since it would mean that a person would almost always have to file
a complaint to preserve legal rights, rather than attempt to resolve issues informally outside the 
Commission's processes. 

48 See also, Section 414 (remedies in the Act are not exclusive, and are in addition to 
remedies existing at common law and by statute). In addition, any limitations of Section 255 do 
not apply to Section 251( a)( 2), as AFB explained in its initial comments. 

49 See, e. g., MTA Comments at 20-21. 

50 The readily achievable standard has been consistently read in other contexts to place the 
burden on the affected company to show that providing accessible accommodations was not 
"readily achievable." 

51 TIA, at n. 30 of its comments, argues that the Commission should not consider net costs 
(costs of the accessibility features, minus benefits received through its incorporation) because 
benefits are purely speculative. Whatever the validity of this criticism, it is evident that the 
inclusion of the cost factors listed by industry are even more speculative, since those factors 
depend on assumptions as to the marketability and profits of products that were never even
created. 

52 "Digital Tornado: The Internet and Telecommunications Policy," Federal 
Communications Commission, Office of Plans and Policy (March, 1997) at p. ii 

53 Id. 

54 Cane, Alan, The Financial Times, "Trying to Connect You"( July 28,1998) p. 13. 

55 Comments of the Self Help for Hard of Hearing People, WT Docket No. 96-198. 

56 Comments of The National Assocation of the Deaf, WT Docket No. 96-198.