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 ) COMMENTS OF THE AMERICAN FOUNDATION FOR THE BLIND 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 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 ) COMMENTS OF THE AMERICAN FOUNDATION FOR THE BLIND The American Foundation for the Blind ("AFB") hereby submits comments in the above-captioned proceeding. The mission of the American Foundation for the Blind is to enable persons who are blind or visually impaired to achieve equality of access and opportunity in all aspects of society. AFB accomplishes this mission, in part, by taking a national leadership role in the development and implementation of public policy and legislation. Since it initially developed the 33 1/3 RPM phonograph record in the 1930's, which was used by the Library of Congress in its "Talking Books" for the blind program, AFB has assumed a leadership role in the effort to ensure that technology (including computers, telecommunications, the Internet, and television) are accessible to and usable by people who are blind or visually impaired. AFB staff was actively involved in passage of Sec. 255 of the Telecommunications Act of 1996, and also served as cochair of the Technical Advisory Committee which developed guidelines for accessible telecommunications products and services which were adopted by the Architectural and Transportation Barriers Compliance Board (hereinafter the "Access Board" or "Board"). Whether the job was to evaluate assistive technology such as braille printers or speech access for computers in our evaluation laboratory; to obtain initial federal funding for video description which makes television programming more accessible to blind persons; or to work to ensure access to the World Wide Web through the World Wide Web Consortium's Web Access Initiative, AFB believes that access to information and technology is critical to the education, employment, and independence of people who are blind or visually impaired. AFB is therefore critically interested in these proceedings and pleased to provide these comments to the Commission concerning implementation of Section 255 of the Act. 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 ) SUMMARY The Commission's Notice of Proposed Rulemaking ("NPRM") has properly recognized that Section 255 of the Telecommunications Act of 1996 was intended to ensure "that all Americans can gain the benefits of advances in telecommunications services and equipment;"[1] to this end the scope of Section 255 is both "broad and practical." Thus, in establishing regulations, it is the Commission's obligation to ensure that the rules actually result in access to telecommunications services, equipment and CPE, even as technologies converge and networks evolve to use different or multiple technologies for telecommunications. The NPRM is aimed in the right direction, and is laudable in several respects, including in its acceptance of key elements of the recommendations of the Access Board. Nonetheless, the NPRM falls short. It does not propose to establish regulations that will be sufficiently clear and comprehensive to achieve accessibility. Most notably: * In order to ensure that accessibility is achieved, the Commission needs to make it clear that it will read the terms "telecommunications services," telecommunications equipment," and "customer premises equipment" broadly and functionally. AFB is concerned that companies that are now building the most advanced products and networks -- especially those based on such as packet-switching -- will not take the steps required to make these network features and products fully accessible unless the Commission ensures functional parity and technology neutrality. Further, because the Commission decided to defer universal service issues as they affect the disabilities community to this proceeding, it is critical that the rules adopted here ensure that the services provided pursuant to the universal service mandates are also accessible to the disabled. See discussion at pp. 6-10. * The Commission properly recognizes that accessibility issues arise at every stage of product development, from design through marketing. The Commission also recognized that in a changing environment, companies should have reasonable latitude to address accessibility issues. However, if companies are going to be relied upon to determine the manner in which accessibility will be addressed, it is critical that each company devise a plan for addressing accessibility issues; that each company maintain records sufficient to show that accessibility issues are being addressed; and that this information be made available to persons complaining that equipment or services are not accessible. The NPRM does not require companies to establish a plan, nor does it require maintenance of adequate records, nor does it clearly require the production of critical information. Absent these requirements, the enforcement procedures that the Commission has devised are likely to be ineffective. See discussion at pp. 20-22. * The efficacy of the Commission's rules may turn in large part on the adequacy of the standards that will be used in formal complaint proceedings to determine whether accessibility is readily achievable. The standards that the Commission proposes are quite complex. At the very least, the Commission needs to be clear that under certain circumstances, it will presume that access is readily achievable. Effectively, the Access Board intended to establish such a presumption when it concluded that there should be no net decrease in accessibility. Likewise, the availability of an accessible product in the marketplace should give rise to a presumption that accessibility was "readily achievable" for similar products. See discussion at pp.22-24. * The formal and informal complaint processes needs to be clarified so that it is clear who bears the burden of proof, at what stage of the proceeding. Under the Commission's approach to Section 255, almost all the information critical to resolving a complaint will be in the control of the company that has allegedly failed to provide the accessible service or equipment. The burden of proving that accessibility is not readily achievable should fall upon the company. See discussion at pp. 35-40. * The procedural process through which complaints are to be resolved should be practical for both sides. The Commission has opted for a "fast-track" approach that contains deadlines that are likely to be missed for quite innocent reasons...vacations, illness and the like. The deadlines are particularly significant because the informal complaint process is intended to be cooperative, rather than a highly legalistic process. But the deadlines make it less likely that anyone will have the time to cooperate. While a process with a definite deadline is critical, realistic deadlines are just as critical. Those deadlines should include deadlines for FCC action. See discussion at pp. 36- 39.I.THE SCOPE OF THE COMMISSION'S RULEMAKING AUTHORITY. AFB agrees that the FCC has the authority (and in fact, the obligation) to adopt regulations to implement Section 255. But, AFB believes that the Commission unduly minimizes the role of the Access Board when it concludes (at Paragraph 30) that it has "discretion" regarding the use of the Board's guidelines, and proposes only to accord "substantial weight" to those guidelines in connection with this proceeding[2]. Section 255 states that the "Board shall develop guidelines" for equipment "in conjunction with the Commission and that the "Board shall review and update the guidelines periodically."[3] (Emphases added). If the Commission had broad discretion to reject the Board's guidelines, the Board's right to review and update would be meaningless. A plain reading of the "in conjunction with" language suggests more of a partnership than the Commission's "substantial weight" test reflects. At a bare minimum, assuming the Commission has authority to reject the Board's guidelines or to modify them, the Commission must at least show that there is a substantial basis for departing from the guidelines, supported by the record. This has not been done, and the final rules should adhere more clearly to the Access Board guidelines.[4] This is particularly so because the guidelines were the product of extended comment and negotiations between the industry and the disabilities community. II. THE COMMISSION MUST READ ITS AUTHORITY UNDER SECTION 255 EXPANSIVELY. A. Services Subject To Section 255. In the NPRM, the Commission concluded that the definitions of telecommunications service, telecommunications equipment and customer premises equipment "require no further definition, and our sole task here is to elucidate their application in the context of Section 255."[5] It recognized, however, that while "many services are considered telecommunications services and, therefore, are clearly subject to the requirements of Section 255...there are some important and widely used services, such as voice mail and electronic mail, which under our interpretation fall outside the scope of Section 255 because they are considered information services"[6] under current FCC rules. The Commission asked whether Congress intended Section 255 to apply to a broader range of services than the services traditionally defined by the Commission as telecommunications services.[7] The issue may actually be one of application rather than definition. The term telecommunications service (as well as the terms telecommunications equipment and customer premises equipment) obviously must be read in a manner consistent with statutory definitions. However, the application of these terms, in this context, presents some particular challenges. 1. As the Commission has noted -- and as industry has consistently pointed out -- it may be difficult to ensure accessibility by "retrofitting" some existing equipment, or equipment that is ready to go to market. The Section 255 rules will have their greatest impact on a going-forward basis, as companies begin to implement the Commission's accessibility rules through product design and service planning. That process, and much of the proposed rule, is necessarily focused on the networks and products of the future, while the Commission's discussions of telecommunications services and information services in other contexts is firmly grounded in the present (and possibly the past). As the Commission recognized (at Paragraph 43), what falls within the scope of the terms "telecommunications services" and "information services" changes over time.[8] The Commission also has recently suggested that a service that might otherwise appear to be an "enhanced service" (under the old FCC terminology) or an "information service" (under the 1996 Telecommunications Act terminology) should nonetheless be treated as telecommunications service to the extent it is designed to facilitate the provision of "a basic transmission path over which a telephone call may be completed."[9] The Commission explicitly recognized that it is important to interpret telecommunications services to include those features that take advantage of the advanced capabilities of a communications network. Likewise, in order to ensure accessibility for the future, Section 255 must be interpreted in a way that anticipates change and that ensures that equipment and services designed for the networks of the future are fully accessible -- even if some of the equipment features or services might be considered "information services" when viewed in light of the way the service is offered today. E-mail provides an interesting example. In its Report to Congress on Universal Service, the FCC suggested that e-mail was an information service in part because it was not sold on a stand-alone basis, but instead was typically provided as part of Internet service.[10] However, several cellular phone providers are now bundling text messaging as part of a telecommunications service, and are developing CPE that includes a bundled e-mail-type service. A network may be set up so that a message from one user is effectively transmitted instantaneously to the intended recipient; and the recipient may immediately "chat" with the sender. The distinction between the text message, and the voice message may only be one of format...a distinction which provides no basis for determining whether a service is or is not a telecommunications service, since the definition of telecommunications service in the Act is format-neutral.[11] And certainly, even if one assumes that there is a distinction today, that distinction is disappearing as networks are designed to carry messages in the sender's chosen format, according strictly to the user's instructions. Consistent with the Commission's determinations in the universal service proceeding, Section 255 must be interpreted in a manner that is technologically neutral - - to provide no incentive or advantage to any provider based on network design or format of transmission.[12] In addition, networks and telecommunications systems are being set up so that a service that might be considered an enhanced service in isolation is in fact a gateway to completion of even ordinary telephone calls. Hence, callers may be routinely routed into voice mail systems that provide a menu of choices, one of which leads to a direct voice contact with the intended recipient of the call. If that voice mail system is not accessible, then it may become impossible to complete the telephone call altogether. In order for Section 255 to work, it follows that Section 255 must be read broadly to apply to any service or equipment that may provide a transmission from one point to another point...and any adjunct service that facilitates that transmission, whether or not such service would be classified as an enhanced or information service today. Given the manner in which it is now being integrated into CPE, this should include, inter alia, e-mail service. This approach is fully consistent with Congressional intent. Congress intended for the Commission to look to the future in implementing Section 255. The Section was intended to "foster the design, development, and inclusion of "new features" in communications technology to permit more "ready accessibility of communications technology." Section 255 was viewed as "preparation for the future."[13] 2. There is an additional reason to read Section 255 expansively -- or to otherwise adopt regulations that have that effect. In the Universal Service Order, the FCC explicitly deferred consideration of universal service objectives as they apply to the disabled to this proceeding. Under the universal service provisions of the Act, the Commission is to assure access to both telecommunications services and to information services. If the Commission were to read Section 255 narrowly, the effect (in conjunction with the Commission's deferral of the matter in the Universal Service Order) would be to deny universal access to information services to the disabled community. That result is not consistent with the plain language of the Act, which requires that "communication by wire and radio" be available "so far as possible" to "all people, and more specifically requires "access" "to telecommunications services and information services" in all regions of the nation.[14] The FCC has a broad mandate to ensure that there is universal service; but there cannot be universal service if covered services are provided in a manner so that they are not accessible to users. As a related matter, the Commission (at Paragraph 46) proposes to subject a provider of telecommunications service to the requirements established in Sections 255(c) and 255(d) only to the extent it is providing telecommunications services, and asks whether it is practical to so limit the obligation. [15] To the extent that services are bundled together, so that there is both a telecommunications service component and a non- telecommunications component, the provider should be required to ensure that both components are accessible. Any other result is likely to create incentives to bundle services in a way that makes the underlying transmission service either less accessible in a technical sense, or more expensive for a disabled person (and hence inherently less accessible). B. Telecommunications Equipment and Equipment Manufacturers. The Commission seeks comment on several key issues related to the implementation of Section 255 with respect to equipment and equipment manufacturers. The FCC tentatively concludes that Section 255 only applies to equipment to the extent that it serves a telecommunications function, and asks for comment on this issue.[16] It tentatively concludes that the term equipment includes software that is bundled with the CPE but not other software, and seeks comment on the "bundled, unbundled" distinction.[17] Finally, the FCC determines that there will be only one manufacturer of equipment, and proposes to identify that entity as the final equipment assembler. The FCC seeks comment on this decision, which would generally mean that retailers and wholesalers are not manufacturers.[18] 1. Equipment that does not serve a telecommunications function is outside the scope of Section 255 by definition. However, all other equipment -- including multi-function equipment, is within the scope of Section 255, and should be accessible as to all functions, not just telecommunications service functions. This is clear from the definitions in the Telecommunications Act of 1996. Customer premises equipment is any "equipment employed" to originate, terminate or route "telecommunications." By its terms, the CPE is not limited to equipment used solely for "telecommunications services" or to that portion of the equipment used for telecommunications services. Hence, a cellular phone that is used to receive telephone calls and to receive stored text messages must be accessible for both purposes. In any case, efforts to apportion equipment functionality would likely to present even more difficulties than efforts to apportion bundled services, discussed above. The Commission recognized the difficulty of apportioning equipment when it adopted rules for cable television equipment regulation and subjected equipment to rate regulation if it was used in the receipt of basic service in any way, even if the equipment was primarily useful or intended for non-basic service.[19] Here, similarly, so long as the equipment can be used or is used for telecommunications, it should be subject to the strictures of Section 255.[20] 2. The FCC correctly recognizes that software associated with CPE and telecommunications equipment is subject to Section 255.[21] This determination is plainly correct, as the cases cited by the Commission indicate.[22] Drawing a distinction between hardware and software would ultimately involve an inappropriate intrusion by the Commission into decisions as to how networks will operate and services will be provided. Hardware and software are becoming fungible in critical respects. However, the "bundled," "unbundled" distinction that the Commission seeks to draw does not appear as sound.[23] At the very least, if software is produced for the function of enabling telecommunications through a CPE, it should not matter whether the software is bundled by the manufacturer or not. This is particularly so where one envisions a world where the hardware functions may be changed (and may be intended to be changed) by software that may be available directly through the manufacturer, or through some other source. For example, several manufacturers have been routinely offering 56K modems that will require a software change in order to comply with newly adopted 56K standards. In this case, the functioning of the equipment will be directly dependent on the availability of the software patch, whether provided through the manufacturer, or through some other entity. It is unclear whether the FCC's "bundled, unbundled" distinction would reach the software provided post-market by any entity. But, unless the software itself is accessible, the use of the equipment itself will be impaired. There is every reason to assume that the "bundled, unbundled" distinction will not be a good one for the future. One June 25, 1998, the Wall Street Journal reported that "Nokia, Telefon AB L.M Ericsson and Motorola, Inc." had formed a joint venture with a third party, Psion PLC, to create software that might provide the "brains behind a new generation of mobile phones.[24] Whether the software that results from this venture is bundled or unbundled should make little difference. Software that is intended to provide the "brains" of the equipment must be accessible if the equipment is to be accessible. Even non- critical software that does not directly affect telecommunications functions must at least "do no harm" and must not interfere with accessibility. This is consistent with the approach taken by the FCC in other contexts, see, e.g., Report and Order in CC Docket No. 89-114.5 FCC Rcd. 6202 (1990) at Paragraph 12 (additions to PBX systems may not "supersede or undermine" basic standards for network protection). 3. The FCC's "one manufacturer" paradigm is in many respects a practical approach to the serious issue of ensuring that some one entity bears the burden of ensuring that accessibility is achieved.[25] However, while the "one manufacturer" rule may make general sense as a rule of responsibility (who will generally be expected to show that a piece of equipment complies with the Act?), it is important that the Commission make clear that the "one manufacturer" rule may not be used to evade responsibility for compliance with Section 255, or allow an entity to sell a product that is inaccessible on the grounds that accessibility is not readily achievable. Imagine, for example, a retailer who buys and sells telephones under a custom nameplate, with the telephone being assembled by a major telephone equipment supplier. If the retailer places a limit on the amount it will pay for the telephone, and an accessible unit cannot be provided for that price, would the manufacturer be able to plead that accessibility is not "readily achievable?" Obviously, a system that makes accessibility a matter of the whim of those who sell directly to the public does not work. Treating the retailer as the manufacturer is not a totally satisfactory solution either, since the retailer may be dependent on the manufacturer's design and other decisions.[26] The Commission can solve the problem, and generally maintain its "one manufacturer" paradigm through three simple principles. First, it ought to make it clear that a manufacturer may not claim that accessibility is not readily achievable based upon its contractual relationships with its suppliers or upon a failure of suppliers to produce accessible equipment. Second, the Commission should make it clear that the "one manufacturer" rule is a rule of convenience only, and that it may in fact hold anyone in a chain of commerce responsible for a failure to comply with Section 255. Third, retailers and wholesalers (like resellers on the service side) bear a responsibility to ensure that equipment is accessible, and may be required to show that they offered to purchase accessible equipment, or have not interfered with its sale to consumers. Retailers and wholesalers must also arrange for forwarding and processing of complaints, since many consumers will in fact identify the product with the entity that sells it. Under this model, while a single manufacturer will be the focus of most complaints -- and will be responsible for resolving most accessibility issues - the Commission will not be prevented from dealing with the practical realities of a complex marketplace. C. Network Features, Functions or Capabilities. The NPRM tentatively concludes that Section 251(a)(2) governs carriers' configuration of their network capabilities; that it does not make them guarantors of service providers' decisions regarding how to assemble services from network capabilities; and that it does not impose requirements regarding accessibility characteristics of the underlying components.[27] The AFB disagrees; as we discuss below, the plain language of Section 251(a)(2) requires more. The NPRM goes on to seek comment regarding the relationship between the enforcement procedures established by Section 252 for interconnection agreements and the Commission's exclusive enforcement authority under Section 255; and how responsibility for equipment should be apportioned between the manufacturer and the carrier that installs the equipment.[28] As we explain below, the statute includes different and additional enforcement mechanisms under Section 251(a)(2). The telecommunications carrier, the service provider and the equipment manufacturer each have accessibility responsibilities. Those responsibilities overlap in order to prevent one from avoiding its responsibilities by pointing to the other. *** AFB agrees that, in one sense, carriers are not guarantors of the service providers' accessibility decisions. On the other hand, to the extent that negotiations between a service provider and carrier result in interconnection provisions that make it more difficult to provide accessibility to the service (because of the physical location of the equipment, or the nature of the connections, or otherwise), Section 251(a)(2) would come into play. Section 251(a)(2) establishes an independent obligation prohibiting the telecommunications carrier from installing "network features, functions, or capabilities that do not comply with the guidelines and standards established pursuant to Section 255..."[29] The NPRM indicates that the fundamental goal of Section 255 is to make telecommunications services as well as telecommunications equipment and CPE accessible to the disabled community.[30] A network feature, function or capability that made it more difficult or unduly expensive to provide an accessible telecommunications service would therefore be prohibited by Section 251(a)(2), whether related to "configuration" of the network or not. For example, the intelligence of the network (as reflected in its features, functions and capabilities) may ultimately determine its accessibility. At the very least, the statute requires that carriers exercise due diligence to carry out the plain directive of Section 251(a)(2). Moreover, this obligation may be enforced outside of the complaint process contemplated by Section 255. Section 255 may give the Commission exclusive jurisdiction over complaints arising under Section 255, as the NPRM assumes.[31] However, the obligations of Section 251(a)(2) obviously arise under Section 251. There are independent bases under Section 251 for ensuring that each telecommunications carrier complies with its duties under state and federal law. There is no indication in Section 251 that Congress intended to limit those enforcement mechanisms. To the contrary, the inclusion of the obligation under Section 251(a)(2) rather than under Section 255 suggests Congress meant to permit accessibility issues to be addressed under both sections. This means, as a practical matter, that an interconnection agreement can and should be rejected by a state if it would result in a violation of Section 251(a)(2).[32] Moreover, it means that in any submission made pursuant to Section 251, the carrier must at a minimum explain whether or not its has complied with the mandate of Section 251(a)(2) (and how it has complied).[33] It further means that the responsibility for responding to complaints that raise Section 251 and Section 255 issues should lie with the carrier, service provider and the equipment provider, jointly.[34] Presumably, the carrier should be insisting on equipment that will permit network elements to be used to provide accessible services to the disabled. Presumably, the equipment manufacturer is providing equipment that is accessible, within the meaning of Section 255. A failure on the part of either to carry out its obligations is a violation of the Telecommunications Act of 1996. These obligations should be made explicit in the Commission's rules governing Section 251 issues.[35] II. THE NATURE OF THE STATUTORY OBLIGATIONS. In Paragraphs 67-124, the NPRM analyzes essential terms that do not originate in the Communications Act, and that will determine whether a telecommunications provider or equipment manufacturer has satisfied its obligations under Section 255. While the Commission takes "special note" of the expertise of the Access Board, it concludes that it must interpret Section 255 in light of the broader purposes of the Act.[36] As to several critical terms -- most notably, in the definition of "readily achievable," the statute contains an express definition.[37] The definitions in Section 255 are unambiguous: the terms mean the same as in the ADA. The Commission does not have a mandate to redefine the terms wholesale "in light of the broader purposes of the Act" or otherwise, and in fact lacks the authority to do so given the explicit directive in the Act.[38] In this case, as we discuss below, the Commission's redefinition has resulted in an accessibility standard that is unduly complex in several respects. A. Disability. The NPRM adopts the ADA definition of disability, and also proposes to incorporate a list of common disabilities identified by the Access Board as a useful guide to service providers and equipment manufacturers.[39] As suggested above, this is the proper approach. The Commission does not have the authority to limit the definition of disability. At the same time, AFB agrees that it is sensible to provide guideposts that may assist manufacturers and service providers in defining the disabilities issues that they must address. The Access Board guidelines are useful and useable in this regard. B. Accessible To and Useable By. The Commission proposed to adopt the Access Board's definition of accessibility and usability. That definition is designed to ensure that there are no impediments to the "functional" use of equipment or services.[40] In general, AFB supports the Commission's approach, which defines "accessibility" in a practical, not an academic manner. The Commission, recognizes, for example (at Paragraph 72) that in order for equipment to be useable for disabled individuals, those individuals must have access to documentation regarding the product equivalent to the information available to consumers generally.[41] This approach is required under Section 255 of the statute, which focuses on the accessibility and usability of equipment and services from the perspective of the user.[42] Manufacturers and service providers, by their actions in the marketplace, have indicated what information must be available in order for equipment and services to be "accessible and useable" by consumers generally. For example, while cellular phones are delivered with a manual, it is also common for cellular phones to include an "in-unit" menu that provides some guidance for activating unit functions; and it is also common to have a number for accessing technical support. Equipment or software upgrades may be available, possibly through the Internet. The decisions to offer assistance in various forms and upgrades over time reflect both the complexities of the equipment and judgments about the way in which the equipment is likely to be used and the speed of its technological evolution. These decisions provide a guide for measuring the minimum types of information resources that must be available to persons with disabilities. The guidelines that are described at Paragraphs 73-74 therefore should be supplemented to make it clear that disabled individuals should be provided options for receiving technical assistance similar to the options available to general consumers, where readily achievable. Further, this support should be available for the product life and for product upgrades. Finally, the accessibility of the support should be evaluated consistent with the guidelines identified by the Access Board and listed at Section 1193.33 of the guidelines. At Paragraph 80, the Commission asks how it should distinguish between accessibility obstacles caused by network equipment, and those attributable to service providers. As a general matter, the problem may be more difficult in theory than in fact, if the Commission simply recognizes that all parties -- the equipment manufacturer, the service provider, and the network owner -- will have independent obligations to ensure accessibility. Those independent obligations should lead to cooperative solutions, so long as the Commission makes it clear that it will presume that cooperation and sharing of information to address access problems is "readily achievable." C. Commonly Used. The NPRM proposes to determine whether peripheral equipment is "commonly used" by examining, inter alia, the cost of the equipment.[43] AFB believes that this misunderstands the nature of the "commonly used" test. The Access Board Guidelines at Subpart D, Section 1193.51 provide a more sensible approach. As those guidelines suggest, it should not matter whether a particular piece of equipment is expensive or not expensive, or has achieved wide dissemination within the disabilities community, if the equipment has inputs and outputs that are themselves standardized. A focus on the price of a piece of equipment, or even whether it is widely used necessarily will exclude from coverage some specialized access technology such as braille displays, or new and innovative equipment. D. Readily Achievable. The NPRM's discussion of the "readily achievable" standard departs most significantly from the plain language of the statute.[44] The result is a circular and overly complex, three- prong standard that defines "readily achievable" as a function of "feasibility," "expense" and "practicality."[45] 1. Feasibility. The NPRM states that in determining whether accessibility is "readily achievable," it is essential to consider whether a solution is technically feasible, citing as an example the alleged technical infeasibility of fitting large keyboard buttons onto a small wireless phone.[46] While technological feasibility is obviously something to consider in determining whether a particular solution will resolve an accessibility issue, the feasibility standard, as proposed, may tend to confuse rather than enlighten. As the keyboard example suggests (and contrary to the discussion at Paragraph 102), a simple "feasibility" standard may lead a manufacturer or service provider to believe its obligations under the statute are satisfied if it can be shown that a particular accessibility option is technologically infeasible given the design, development and implementation decisions the manufacturer or service provider has chosen to make. As discussed earlier,[47] a manufacturer might actually choose to eliminate a feature that is accessible in order to enhance a feature that is not. For example, a manufacturer may be able implement a design that allows 200 speed dial numbers to be activated from a video screen but no speed dial numbers via keyboard command; or to implement a design that allows 100 speed dial numbers to be activated via keyboard or video screen, at the user's choice. Accessibility for people who are blind or visually impaired is feasible if the latter approach is taken, but not in the former case. If the manufacturer can simply decide to incorporate features in a manner that makes it infeasible to provide accessibility, the statute will have little meaning. A simple feasibility standard therefore begs the question: the critical question is whether the manufacturer or provider considered alternatives, including an assessment of their impact on accessibility, and erred in favor of accessibility. This is the test required by the statute. As the NPRM (at n. 199) suggests, the closest corresponding ADA test considers the "nature and cost" of the action needed to provide accessibility. Returning to the original example of large keys on a small unit, this test focuses on the nature of the problem (keys not useable by persons with limited vision) and nature of the resolution required (provision of an input approach that is useable). Feasibility would only become an issue if there were no way to provide an input device. The Commission's rules should therefore be clear that there is a responsibility to define the problem, and to consider alternatives, consistent with the ADA approach. This is preferable to the adoption of the vague "feasibility" standard set out in the NPRM.[48] 2. Expense. The Commission proposes to determine the expense associated with accessibility by considering the cost of implementing accessibility, offset by the potential income stream associated with sales of the service or equipment.[49] In addition, the Commission proposes to take into account the "opportunity cost" associated with implementing accessibility solutions.[50] While expense is obviously something that is appropriately considered in the context of the ADA, the expense test proposed by the Commission is unworkable. The "opportunity cost" analysis, for example, assumes that opportunity costs can be sensibly quantified -- and that had a particular company devoted resources to some other enterprise, that enterprise would have proven profitable. Thus, the Commission (at Paragraph 104) suggests that it will consider the fabrication resources required to build a product, although it is not clear why it should be presumed that the facilities would have been useable for some other purpose, or that the use would have been profitable. The cost of determining the opportunity cost will be enormous. Moreover, it cannot possibly lead to the result contemplated by the statute. By definition, if manufacturers believed that the best use of their dollars was to produce accessible equipment, the equipment would be produced; the fact that Congressional intervention was required suggests the possibility that the opportunity cost analysis is being made in the market place and is being resolved in a manner that Congress decided was inconsistent with important public policies. Even the process of determining the "net" expense associated with providing accessibility, while more defensible, is likely to be a speculative enterprise at best. The process is made even more confusing by the fact that the NPRM proposes to consider the same issue in several different ways. Thus, not only does the Commission propose to consider the "net" expense (which appears to be the cost of the feature minus additional income), the NPRM also proposes to consider "cost recovery," which appears to require the Commission to identify the incremental cost of a feature, and whether that incremental cost will be recovered.[51] Further, the NPRM's analysis ignores the fact that in this technologically evolving field, it is not at all clear how "expense" should be accounted for. A feature that industry wished to add might be very expensive, but might nonetheless be added to a particular product even where adding the feature might not otherwise seem to be justified because adding the feature might pave the way to new markets, or because the cost of the feature might well be spread across several product lines. In order to consider the expense of including voice activation features in a particular cellular phone, for example, one would need to ask whether that expense is properly allocated to the particular product or should be spread across several other products. There is no particularly good way to determine opportunity cost or net expense or cost recovery based on "expeditious procedures," without creating simple rebuttable presumptions.[52] There may be a basis for presuming that the cost of providing access is in fact low, because the same options that make a product accessible to what has traditionally been defined as the disabled community will often make the product more useable or useful to the general consuming public. Equipment that is voice- activated, and equipment that can convert text-to-speech may be critical to persons who are blind. Chairman Kennard has emphasized this point in recent speeches.[53] It has also become clear that such features are enormously beneficial to others who may wish to "hear" their e-mail messages, or activate calling card features by voice, rather than from a keypad. Therefore, absent some showing that an accessibility feature is not useable by the general public, or that an accessibility feature cannot be marketed more generally (because of legal constraints, for example), the Commission should presume that any expense will be offset by net benefits. If there is such a showing that an accessibility feature is not useable by the general public, then the question is a much simpler one: what is the incremental cost of the accessibility feature? That cost must then be balanced against the resources available to the provider to determine whether accessibility is "readily achievable" given the costs associated with it. 3. Practicality. The "practicality" standard devised by the Commission seems designed to consider the organizational resource issues implicit in the ADA definitions at 301(9)(B)-(D). The FCC proposes to consider the resources available to the provider to meet expenses associated with accessibility; to consider the potential market for the product or service; to consider incremental cost; and to consider product life cycle issues.[54] One of the issues that the Commission proposes to consider as part of the "practicality standard" -- the incremental cost issue -- duplicates the investigation conducted in determining the expense of accessibility and is unnecessary. The remaining tests are discussed below. i. Resources. The FCC (at Paragraphs 109) proposes to examine the resources of the corporation or equivalent organization that is legally responsible for the equipment or service, subject to presumptions which are designed, on the one hand, to prevent companies from establishing sub-units that do not have access to the resources other units may have; and on the other to look only at the resources of a sub-unit that does not have access to the resources of the parent. AFB generally supports this approach, with three important modifications. First, in determining whether a corporation or other unit should be deemed to have access to the resources of the parent, the Commission must examine not only whether the corporation has access to the resources of the parent generally, but also whether other corporations or units of the parent have access to parental resources. That is, one cannot create isolated sub-units in order to evade Section 255 responsibilities. Second, in determining whether a sub-unit does not have access to the resources of the parent, the Commission should make it clear that the impediment to resource access must be legal and not simply budgetary. In response to the NOI, several industry groups pointed out that products might be created by sub-units that are given very limited budgetary resources, as a matter of corporate policy. However, Section 255 places the legal responsibility on the service provider or the telecommunications equipment manufacturer, not upon the sub-unit. The parent cannot avoid its responsibility by creating underfunded production sub- units. This is particularly important in the context of Section 255, where an accessibility option (e.g., voice activated features) developed in connection with one product may have application to other products outside the sub-unit. Focusing on the legally responsible entity will allow the Commission to determine whether development of an accessibility feature is "readily achievable. Third, the Commission should add a final test. As noted above, the Commission has proposed to identify the "equipment manufacturer" as the final assembler. The "resource" analysis echoes that approach, and raises some of the same concerns that AFB discussed earlier. With respect to parents and subsidiaries that create a marketing chain responsible through different legal entities for the collective "design, development and fabrication" of a product, at the very least the resource analysis should look to the resources available through the entire chain. For example, a parent company might purchase and then market products from a subsidiary under its own name, and bear responsibility for technical support of the product. Under this example, the parent, as well as the subsidiary has responsibility for compliance under Section 255. Therefore, resources of the parent (if greater) should be considered in determining whether access is readily achievable, even if the parent would not ordinarily make the resources available to the subsidiary. ii. Market Considerations. The Commission proposes to take market considerations into account in determining whether it is practical to make a product accessible. The Commission (at Paragraphs 111-114) seeks comment on whether and how these considerations should be taken into account. As the Commission recognizes, a standard that relies on "market considerations" is likely to lead to specious claims that accessibility will adversely affect the marketability of a product.[55] While the FCC states that it does not intend to entertain such claims, it is doubtful that the claims could be avoided.[56] Particularly troubling is the Commission suggestion that one might consider whether the accessible product would compete with non-accessible products in terms of price and features. The goal of Section 255 is to provide accessibility for all equipment and services. Allowing accessibility to be denied by comparison to non-accessible equipment and services results in a circular analysis that undercuts the mandate of Section 255. It does not appear to be necessary to address "market considerations" independently as part of the "readily achievable" test. Finally, in its discussion of "market considerations," the FCC declines to adopt the "no net decrease" rule proposed by the Access Board, apparently because the Commission believes that manufacturers should be allowed to make "legitimate feature tradeoffs" or because the rule may somehow discourage innovation.[57] AFB does not believe that the Commission's innovation concerns are well-grounded and its "trade-off" test cannot be squared with the statute. It does not appear to the AFB that the Commission has the option of allowing innovation that limits existing accessibility. Section 255 mandates accessibility where it is readily achievable, and as the FCC recognizes, "the fact that a product has particular accessibility features is evidence that inclusion of those features in later products from the same producer is readily achievable." The Congressional mandate appears to AFB to decide that innovations that limit accessibility are not permitted. Graphical user interfaces (to take one "innovation") present problems for the blind if implemented in one particular way (without appropriate backward compatibility and without the capability of interacting with the icon without seeing it) but could also be implemented in a way that does not create these problems. That should be the required result. The Commission has recognized that speed dialing is a telecommunications service. Many older cellular phone models permitted numeric keyboard activation of speed dialing, ringer tone/volume, and other features which were accessible to people who are blind or visually impaired. By contrast, most newer models reduce or eliminate numeric keypad control of functions and features, requiring the user instead to scroll through a menu of options shown on a visual display which, of course, is inaccessible to a person who is blind. In one sense, this is a product innovation: the convenience of an expanded menu-driven interface for those who can see the menu; but it is a tremendous step backward for users who are blind, or anyone else who must use the phone in poor lighting conditions. This sort of access-limiting approach makes precisely the tradeoffs that the law was intended to prevent. The Access Board's "no net decrease" guideline should be adopted." iii. Timing issues. The Commission generally draws a distinction between new products and old products, assuming that features are more difficult to add at the end of the development cycle or post- development. Hence, the FCC states that once a product is introduced without the accessibility features (because accessibility was not possible at the time) it need not be retrofitted to incorporate subsequent accessibility features.[58] The Commission's analysis is correct to the extent that it assumes that retrofitting may not be possible for certain existing products. But, the sort of blanket presumption the NPRM proposes to adopt is not justified and runs counter to the access board guidelines. Product upgrades, through software or hardware additions may be made available by a manufacturer during the course of the life of a product. For example, a corporate phone system may remain in place for years, but may be upgraded via hardware or software additions that add or modify features over time.[59] These sorts of upgrades should incorporate accessibility features, to the extent readily achievable. Even additions to documentation may sometimes make a product accessible, by explaining how advanced features can be manipulated. Likewise, to the extent that it is "readily achievable" to add accessibility features post-development, the features ought to be added. An exception could be drawn where the manufacturer could show that the cost of the add-on to the product would be roughly equivalent to the price of purchasing a new unit, and further shows that it is or will be making a new unit available within a short period of time. As a general matter, the replacement unit should have been fully tested and be in the final phase of production before a manufacturer may take advantage of this defense.[60] II. IMPLEMENTATION ISSUES. The major problem with the complaint process devised by the Commission is that it does not ensure that there will be any way to easily determine whether or not a company is in fact taking the steps required to comply with Section 255. As is clear from the Initial Regulatory Flexibility Analysis, the only "recordkeeping requirement that the Commission proposes is for each covered entity to provide a point of contact for referral of consumer problems." This means that companies will not have internal, written guidelines for implementing Section 255, nor will they be required to maintain records of e.g., the manner in which the FCC guidelines were taken into account in the product design, development and fabrication processes. However, the efficacy of the proposed rules depends upon industry considering accessibility issues throughout product development. As the Commission has suggested, the rules are very process oriented.[61] But, unless the process is defined, and its implementation reviewed, there is no reason to suppose that the process is likely to operate well or serve the statutory goals. Likewise, without documentation, the "readily achievable" test that the Commission proposes is likely to be impossible to apply without extended hearings. The informal process, to be most effective, requires that complainants be able to determine to their satisfaction whether accessibility was or was not readily achievable. A process that does not have this effect will result in the submission of more formal complaints. AFB therefore suggests a simple four-pronged approach that will render the FCC's implementation procedures more efficient. First, every telecommunications service provider, every equipment manufacturer and every carrier subject to 251(a)(2) should be required to develop an accessibility plan defining precisely how it intends to implement the accessibility obligations through the product and service development process. To the extent that a product is tested, the testing should include some plan for product testing for accessibility. The plan should be periodically reviewed to determine whether it is resulting in accessibility, and if it is not, then the process itself should be revisited. Second, every covered entity should maintain records showing how the plan was implemented at each phase of the production process. In the design phase for equipment, for example, records should show what accessibility options were considered, and why they were rejected. Third, the manufacturer or service provider should certify that it has taken accessibility issues into account, and should further state(using the FCC guidelines) whether it believes that its product is or is not accessible to and usable by persons with specific functional limitations.[62] Fourth, the information described in the first and second point above should be provided to a complainant on request. Complainants will then be able to focus upon whether reasonable efforts have been made to address Section 255. In turn, at the end of the complaint process, it will become simpler for the FCC to determine the appropriate remedy for a particular violation. The FCC will be in a position to distinguish between companies that have made good faith efforts to comply with Section 255, and those which have not. A. The Informal Process. The AFB generally supports the informal procedures outlined by the Commission. It believes that the approach can be flexible, so long as the procedures are clearly understood, publicized, and easily accessible. At Paragraph 132, for example, the Commission asks whether it should permit delegation of contact point responsibility to clearinghouses or to other entities that are not "in-house." The main goal should be to ensure that the complaint process is seamless to the complainant. So long as one entity is responsible for receiving complaints (as opposed to one entity for engineering issues, one for design, etc.) the process should work whether or not the contact responsibility is delegated. The Commission should permit latitude in contact point designation, so long as the legal responsibility for ensuring that complaint response deadlines are satisfied lies with the entity that is subject to Section 255. At Paragraph 134, the Commission asks whether contact information should be publicly available. The answer is "yes." If the information is publicly available, secondary information sources will develop that will help potential complainants use the informal process more effectively. Access through the Commission's own web resources would be helpful in this regard. It may also be helpful to establish an e-mail address for filing complaints. It may also prove helpful to establish a database of complaints filed. This would simplify processing procedures, and also (a) help equipment and service users to identify what sort of issues are being addressed through the complaint process and (b) help the Commission identify particular problems or particular companies that may be of most significant concern. Further, the database should include information about complaints that were dismissed on the ground that the service involved was an information service. By collecting data on accessibility of information services, the Commission will be in a better position to gauge the rationality and impact of the telecommunications/information services distinctions that it draws. At Paragraph 135-139, the Commission sets out very strict deadlines for responding to complaints -- too strict for a process that is supposed to be informal and cooperative. While some complaints (such as complaints about documentation for a product) might well be resolved quickly, in other cases (where it appears that a company is not implementing Section 255 in the design process) it is likely to take more time for the company to produce and the complainant to examine information that will help resolve the complaint. It may be that many complaints, for example, will come from organizations that represent a group of individuals that cannot obtain access, and that the appropriate "informal" resolution will result in changes to the process by which Section 255 is implemented within a company. This is likely to take some time. AFB therefore proposes to adjust the timetables as follows. The time for forwarding a complaint should be one day, as proposed, though a failure to meet this deadline should not become grounds to excuse subsequent deadlines. The complaint should be acknowledged, and the procedure the company will follow to address the complaint should be described to the complainant within five business days, in a format accessible to the complainant. The time for response should be 20 business days from the complaint. The Commission should issue its decision on the fast-track complaint within 40 days of the submission of the report by the entity covered by Section 255. The time for response provides a more realistic schedule for discussions between a complainant and a company, and makes it less likely that the Commission will be asked to approve multiple extensions of time. However, just as critical is a deadline for Commission action, particularly for the initial report. Such a deadline is required as a matter of due process. The Commission also asks under what circumstances the informal process may be terminated.[63] Obviously, a complainant should be able terminate the process at any time by withdrawing its complaint. And, so long as there is a deadline for initial Commission action -- and that action may be followed by an appeal of the informal decision, or by initiation of a formal complaint -- once the informal process begins it may continue to the issuance of the initial Commission report. Whether or not the Commission establishes strict deadlines for the issuance of a report, it will be critical to permit a complainant to file a formal complaint at any time. Indeed, the formal and informal processes could proceed simultaneously.[64] Finally, the Commission should recognize that the informal process will only proceed smoothly and soundly if the staff members of the Commission understand disability issues. This requires training on an ongoing basis, and it will behoove the Commission to take steps to ensure that this training can occur. B. The Formal Process. AFB's main concern with the Commission's discussion of the formal procedures is the absence of a clear statement indicating that a complainant always has the option of initiating formal procedures. At Paragraph 147, for example, the Commission suggests that the formal proceedings will only be initiated at its discretion. Because the informal procedures in fact provide very limited protection for the complainant as crafted, and no apparent opportunity for participating beyond the initial issuance of a Commission report, and because the Commission has declared that it is the sole forum for hearing complaints, this limitation denies complainant's due process. This is a civil rights statute. The Commission should not be able to refuse to commence formal proceedings (although it can obviously resolve some complaints on a summary judgment basis). The procedures that the Commission has outlined[65] will generally work reasonably well in a Section 255 context, so long as the Commission properly allocates the burden of proof. That burden should be squarely placed on the company that is covered by Section 255. In addition, there will be instances where a complaint may actually involve multiple companies (e.g., in considering what resources are available to a Section 255 covered entity). The identity of the companies may not be known to the complainant. It should be clear that once a company receives a formal complaint, it is that company's responsibility to join others who may bear responsibility for providing accessibility. For example, if an equipment manufacturer believes inaccessibility is actually attributable to the service provider, the provider should be joined. The rules should therefore provide for a simple process for joinder, and should ensure that discovery is available from all relevant companies in a product or service chain. Generally, persons filing Section 255 complaints should not be subject to filing fee requirements. In many cases, filing fees would impose an unreasonable bar to resolution of Section 255 complaints by individuals and the groups that represent them. National statistics indicate that disabled individuals have materially below-average incomes. Filing fees would only exacerbate the difficulties of solving access problems. And, given the Commission's exclusive jurisdiction over such complaints, filing fees could well result in a denial of due process. In addition, the Commission should make the following modifications to its rules of procedures for Section 255 complaints: 1. Section 1.721(a)(5) generally prohibits allegations from being made on the basis of information and belief and requires a full description of the source of the harm. In this case, however, while a complainant can reasonably be expected to make the fundamental allegation that a piece of equipment is not accessible, a complainant generally will not be able to identify the cause of the inaccessibility, or otherwise detail whether, e.g., inaccessibility is due to flaws in the design process, the development process or the fabrication process.[66] The Commission must either allow pleadings on information and belief, or more simply make it clear that a Section 255 complaint is stated by an allegation that the equipment or service is subject to Section 255 and is inaccessible. Section 1.721(10) will also require changes to this end. Section 1.721(a)(8) appears to require that complainants attempt to resolve complaints informally before filing a formal complaint. Given the availability of the fast-track procedures, this requirement should not apply in Section 255 proceedings. A company that answers a complaint should be required to make as an affirmative defense any claim that the accessibility problem is the responsibility of another company, and the rules should provide for joinder of any company so identified. The Reply process contemplated in Section 1.726 establishes a strict standard for responses to affirmative defenses. Since complainants are not likely to be in a position within three days of the answer to respond to affirmative defenses, (given the complexity of the "readily achievable" standard). Indeed, no response should be required to affirmative defenses. Rather, the validity of the affirmative defenses should be resolved through the complaint proceeding itself. As suggested above, records must be maintained and produced if the complaint process is to work. Section 1.730(h) should make it clear that complainants have an absolute right to such documentary materials in the Section 255 process. Finally, Section 1.733 rules need to be modified so that they do not place an unreasonable burden on disabled individuals, and so that the critical transcripts and recordings are themselves accessible. IV. CONCLUSION. AFB's Comments have focused on areas where it believes that the regulations proposed by the NPRM require improvement. Generally, however, the Commission is to be applauded for recognizing that the key to implementing Section 255 is to develop a practical approach that results in functional accessibility. If the Commission adopts the NPRM with the sorts of modifications suggested above, that goal will be achievable. Nothing that has been proposed by AFB should prove burdensome to industry. The additional planning and record- keeping requirements are in fact relatively minimal, because those requirements can be incorporated into existing product design procedures. For example, companies will already keep records with respect to test performed on products to comply with FCC technical standards; it adds very little to require that the testing records include accessibility testing. Design procedures will already include records; it adds very little to include records regarding accessibility. On the other hand, the rewards associated with ensuring that equipment is accessible are large, and cascade across society. And, as Congress recognized, in a society that is aging rapidly, and where the disabled population is increasing rapidly, taking steps now to ensure accessibility is actually vital to the long-term health of the telecommunications infrastructure in this country. 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 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 ) SUMMARY OF COMMENTS OF THE AMERICAN FOUNDATION FOR THE BLIND The Commission's Notice of Proposed Rulemaking ("NPRM") has properly recognized that Section 255 of the Telecommunications Act of 1996 was intended to ensure "that all Americans can gain the benefits of advances in telecommunications services and equipment;" to this end the scope of Section 255 is both "broad and practical." Thus, in establishing regulations, it is the Commission's obligation to ensure that the rules actually result in access to telecommunications services, equipment and CPE, even as technologies converge and networks evolve to use different or multiple technologies for telecommunications. The NPRM is aimed in the right direction, and is laudable in several respects, including in its acceptance of key elements of the recommendations of the Access Board. However, the Commission needs to modify its proposed approach in several critical respects. Most notably: 1. In order to ensure that accessibility is achieved, the Commission needs to make it clear that it will read the terms "telecommunications services," telecommunications equipment," and "customer premises equipment" broadly and functionally. AFB is concerned that companies that are now building the most advanced products and networks -- especially those based on packet-switching -- will not take the steps required to make these network features and products fully accessible unless the Commission ensures functional parity and technology neutrality. Further, because the Commission decided to defer universal service issues as they affect the disabilities community to this proceeding, it is critical that the rules adopted here ensure that the services provided pursuant to the universal service mandates are also accessible to the disabled. 2. The Commission adopts some, but not all of the guidelines adopted by the Access Board. The Commission needs to incorporate several additional Access Board guidelines in its final rules. 3. The Commission properly recognizes that accessibility issues arise at every stage of product development, from design through marketing. The Commission also recognized that in a changing environment, companies should have reasonable latitude to address accessibility issues. However, if companies are going to be relied upon to determine the manner in which accessibility will be addressed, it is critical that each company devise a plan for addressing accessibility issues; that each company maintain records sufficient to show that accessibility issues are being addressed; and that this information be made available to persons complaining that equipment or services are not accessible. The NPRM does not require companies to establish a plan, nor does it require maintenance of adequate records, nor does it clearly require the production of critical information. The final rules should do so. 4. The efficacy of the Commission's rules may turn in large part on the adequacy of the standards that will be used in formal complaint proceedings to determine whether accessibility is readily achievable. The standards that the Commission proposes are quite complex. At the very least, the Commission needs to be clear that under certain circumstances, it will presume that access is readily achievable. Effectively, the Access Board intended to establish such a presumption when it concluded that there should be no net decrease in accessibility. Likewise, the availability of an accessible product in the marketplace should give rise to a presumption that accessibility was "readily achievable" for similar products. 5. The formal and informal complaint processes needs to be clarified so that it is clear who bears the burden of proof, at what stage of the proceeding. Under the Commission's approach to Section 255, almost all the information critical to resolving a complaint will be in the control of the company that has allegedly failed to provide the accessible service or equipment. The burden of proving that accessibility is not readily achievable should fall upon the company. 6. The procedural process through which complaints are to be resolved should be practical for both sides. The Commission has opted for a "fast-track" approach that contains deadlines that are likely to be missed for quite innocent reasons...vacations, illness and the like. The deadlines are particularly significant because the informal complaint process is intended to be cooperative, rather than a highly legalistic process. But the deadlines make it less likely that anyone will have the time to cooperate. Realistic deadlines are critical. Those deadlines should include deadlines for FCC action. 7. The FCC's rules should allow any person to initiate a formal complaint. And, the rules for resolving those complaints will need to be amended to take into account some of the unique problems that will arise under Section 255. Endnotes 1. NPRM, Secs. 3-4. 2. NPRM, Paragraph 3. 3. NPRM, Paragraph 9. 4. In paragraph 74, The Commission appears to propose to adopt specific technical access requirements from the Access Board guidelines (specifically Sections 1193.41 Input, controls, and mechanical functions and Section 1193.43 Output, display, and control functions); and, further in paragraph 91-92 the NPRM includes the five criteria listed in the guidelines at Section 1193.51 Compatibility. AFB believes these sections should be explicitly adopted. Likewise the remaining substantive sections of the guidelines should be adopted so that they apply equally to equipment manufacturers and service providers. These sections cover important areas such as market research, access testing and validation, outreach to people with disabilities, and accessible documents and customer support. Section 1193.23 Product Design, Development and Evaluation Section 1193.33 Information, documentation and training Section 1193.37 Information pass through Section 1193.39 Prohibited reduction of accessibility, usability and compatibility 5. NPRM, Paragraph 36. 6. NPRM, Paragraph 42. 7. NPRM, Paragraph 42. 8. See North American Telecommunications Association Petition for Declaratory Ruling under Section 64.702 of the Commission's Rules Regarding the Integration of Centrex, Enhanced Services, and Customer Premises Equipment, ENF No. 84-2, Memorandum Opinion and Order, 101 FCC 2d 349 (1985) (NATA Centrex Order), recon., 3 FCC Rcd 4385 (1988). 9. In the Matter of Implementation of the Non-Accounting Safeguards of Sections 271 and 272 of the Communications Act of 1934, as amended, CC Docket No. 96-149, 11 FCC Rcd 21905 (1996) at Paragraph 107. 10. At Paragraph 79 of the Report, the Commission states that "it would be incorrect to conclude that Internet access providers offer subscribers separate services -- electronic mail, Web browsing, and others -- that should be deemed to have separate legal status, so that, for example, we might deem electronic mail to be a "telecommunications service," and Web hosting to be an "information service." The service that Internet providers offer...is Internet access...[which] crucially involves information-processing elements." 11. A telecommunications service is any service through which a company, for a fee, offers to transmit "between or among points specified by the user" "information of the user's choosing, without change in the form or content of the information as sent and received, and without regard to the facilities used. 12. Federal-State Joint Board on Universal Service, CC Docket No. 96-45, Report and Order, 12 FCC Rcd 8776, (Paragraphs 69-70) (1997) (Universal Service Order), as corrected by Federal-State Joint Board on Universal Service, Errata, FCC 97-157, released June 4, 1997, appeal pending in Texas Office of Public Utility Counsel v. FCC, No. 97-60421 (5th Cir. 1997); Federal-State Joint Board on Universal Service, CC Docket No. 96-45, Order on Reconsideration, 12 FCC Rcd 10095 (1997); Changes to the Board of Directors of the National Exchange Carrier Association, Federal- State Joint Board on Universal Service, CC Docket Nos. 97-21, 96- 45, Report and Order and Second Order on Reconsideration, 12 FCC Rcd 18400 (1997), as corrected by Federal-State Joint Board on Universal Service, CC Docket No. 96-45, Errata, 12 FCC Rcd 22493 (1997); Changes to the Board of Directors of the National Exchange Carrier Association, Federal-State Joint Board on Universal Service, CC Docket Nos. 97-21, 96-45, Order on Reconsideration, Second Report and Order, and Further Notice of Proposed Rulemaking, 12 FCC Rcd 12437 (1997); Federal-State Joint Board on Universal Service, CC Docket No. 96-45, Third Report and Order, 12 FCC Rcd 22485 (1997), as corrected by Federal-State Joint Board on Universal Service, CC Docket Nos. 96-45 and 97- 160, Erratum, released Oct. 15, 1997; Changes to the Board of Directors of the National Exchange Carrier Association, Federal- State Joint Board on Universal Service, CC Docket Nos. 97-21, 96- 45, Second Order on Reconsideration in CC Docket 97-21, 12 FCC Rcd 22423 (1997); Federal-State Joint Board on Universal Service, CC Docket No. 96-45, Third Order on Reconsideration, 12 FCC Rcd 22801 (1997); Federal-State Joint Board on Universal Service, Access Charge Reform, Price Cap Performance Review for Local Exchange Carriers, Transport Rate Structure and Pricing, End User Common Line Charge, CC Docket Nos. 96-45, 96-262, 94-1, 91-213, 95-72, Fourth Order on Reconsideration, FCC 97-420, released Dec. 30, 1997, as corrected by Federal-State Joint Board on Universal Service, CC Docket Nos. 96-45, 96-262, 94-1, 91-213, 95-72, Errata, 13 FCC Rcd 2372 (1998). 13. S. Rep. No. 104-23 at 52. The Senate language was generally adopted in conference. Given this Congressional intent it is apparent that Section 255 is a type of civil rights law, intended to be interpreted liberally over time to achieve the goal of ensuring access to communications technology to the disabled. See, e.g., Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 105 (1989) (civil rights law was intended to be interpreted broadly to ensure that civil rights were not impaired.) 14. Communications Act of 1934, as amended, Section 1, Section 254(b)(2). 15. The Commission has properly recognized that the term "telecommunications provider" reaches all entities providing telecommunications service. Had Congress intended to reach a more limited universe, it could have used the defined term "telecommunications carrier." The fact that it did not do so is a good indication that Congress meant for Section 255 to sweep broadly, so that its accessibility goals could be achieved. 16. NPRM, Paragraph 53. 17. NPRM, Paragraph 56. 18. NPRM, Paragraphs 60-61. 19. Report and Order, MM Docket No. 92-266, "Implementation of Sections of the Cable Television Consumer Protection and Competition Act of 1992," Paragraphs 283, 406 (April 1, 1993). 20. The FCC asked for comment on practical difficulties of applying Section 255 to a manufacturer that produces equipment that is intended for non-telecommunications purposes but that is in fact used for telecommunications purposes. The problem will largely prove illusory if the approach advocated by AFB above is adopted. However, in the rare case of a manufacturer that produces equipment that was intended for other purposes, but has a telecommunications function that the manufacturer did not recognize, obligations should attach when the manufacturer either takes steps to profit from the telecommunications functions, or becomes aware that the telecommunications use is a common use of its equipment by the ultimate purchaser. 21. NPRM, Paragraph 62. 22. NPRM, Paragraph 63. 23. NPRM, Paragraph 56. 24. "Phone Giants Team Up to Challenge Microsoft," Wall Street Journal p.B6 (June 25, 1998). 25. NPRM, Paragraph 47. 26. NPRM, Paragraph 59. 27. NPRM, Paragraph 65. 28. NPRM, Paragraphs 63-66. 29. NPRM, Paragraph 62. 30. NPRM, Paragraphs 3-4. 31. NPRM, Paragraph 144. 32. Section 251(e). Section 251(e) provides that a state commission may reject an interconnection agreement if it finds that the agreement violates any provision of Section 251. This would include, of course, Section 251(a)(2). 33. Section 251(f), for example, states that "[a] Bell operating company may prepare and file with a State commission a statement of the terms and conditions that such company generally offers within that State to comply with the requirements of section 251þ" This would include, by necessity, an explanation of how the company is complying with Section 251(a)(2). 34. As the AFB pointed out above, the Commission's decision to make the final assembler responsible makes sense when one is attempting to determine who is responsible for ensuring that a single piece of equipment is accessible. However, because Section 251(a)(2) establishes an independent obligation upon carriers, it would be inappropriate to shift responsibility solely to the manufacturer or solely to the carrier. 35. This is hardly an unreasonable burden. Telecommunications carriers would certainly complain if a provider attempted to operate the network or attach devices to the network that interfered with basic signaling or other functions. By virtue of Section 255 and Section 251, accessibility is now a basic feature of telecommunications networks, and as such, must be protected. 36. NPRM, Paragraph 67. 37. NPRM, Paragraph 94. 38. Obviously, the ADA definitions were crafted to apply to existing buildings. What is readily achievable within the meaning of Section 255 may vary, for example, between existing products and new products. 39. NPRM, Paragraph 68. 40. NPRM Paragraph 73. 41. NPRM Paragraph 75. 42. Thus, for example, Section 255(b) requires that manufacturers ensure that "equipment is designed, developed, and fabricated to be accessible to and usable by individualsþ" 43. NPRM, Paragraph 90. 44. NPRM, Paragraphs 94-97. 45. NPRM, Paragraph 100. 46. NPRM, Paragraph 101. 47. See discussion at p. 16. 48. NPRM, Paragraphs 101-102. 49. NPRM, Paragraph 103. 50. NPRM, Paragraph 104. 51. NPRM, Paragraphs 115-116. 52. The Commission's efforts to develop a simplified cable rate regulatory structure that,inter alia, would nonetheless permit it to determine the "net" cost of programming have required the Commission to revise its rules at least 14 times in a span of only six years; the Commission has recently suggested that its rules may not be adequate to allow it to identify these "net" costs, and that further investigation may be necessary to determine whether programming charges levied by cable companies are reasonable. The Commission's description of the "expense" test it proposes to apply here likewise seems to invite regulatory confusion. 53. Remarks by William E. Kennard, Chairman, Federal Communications Commission to WIRELESS 98, Atlanta, Ga. (February 232, 1998). "The best way [to achieve accessibility] is to consider access issues at the front end -- during the development and design process. It is an area where the truly innovative can help the disabled -- and create a lucrative market. After all, look at other products first designed as "disability solutions": vibrating pagers, ball mouses, speaker phones. They are on the mass market now. Speaker phones, Motorola's new talking pager, and PacBell's priority ringing service can be used by everybody. At the Winter Olympics, Japan's NTT is testing another product with great potential for more than the disabled. It's a mobile phone that can be worn like a watch, weighs less than two ounces and uses voice- recognition, not a keyboard." 54. NPRM, Paragraph 106. 55. NPRM, Paragraph 113. 56. NPRM, Paragraph 113. 57. NPRM, Paragraph 114. 58. NPRM, Paragraph 120. 59. Indeed, the FCC needs to recognize that some equipment or systems are actually expected to remain in place for relatively longer period of time, and may be marketed based on an ability to be upgraded over time. Certainly where products are touted as upgradeable, and a company devotes sales efforts to upgrades, the process of designing, fabricating and implementing the upgrades should include efforts to add accessibility. 60. An additional issue arises where a manufacturer or service provider simply fails to abide by the mandates of Section 255. In such a case, it is appropriate to order retrofitting even if the retrofit would not ordinarily be required "readily achievable."" Otherwise, a company could avoid Section 255 altogether simply by evading the law until it was no longer possible to comply cheaply. 61. NPRM, Paragraph 124. 62. The Commission asked whether it should adopt rules similar to its equipment certification rules for purposes of Section 255. AFB believes that this would be helpful. First, it will help people in the disabled community to make decisions about what products to buy. Second, it may help focus complaints. More detailed investigation may be necessary where a product is plainly not accessible. The informal process may be best suited for resolving complaints about products that are certified accessible but which for some reason -- inadequate documentation, correctable code errors, etc. -- are not accessible in fact. 63. NPRM, Paragraph 137. 64. In the cable renewal process, for example, the informal resolution procedures and the formal procedures may and often do move forward simultaneously. This can avoid unnecessary delay or duplication of effort. 65. NPRM, Paragraphs 144-156. 66. The Commission's own inquiry as to how to distinguish between inaccessibility problems caused by the equipment and inaccessibility problems caused by the service illustrate the point.