Before the FEDERAL COMMUNICATIONS COMMISSION Washington, DC 20554 In the Matter of Implementation of Section 255 of the Telecommunications Act of 1996 Access to Telecommunications Services, Telecommunications Equipment, and Customer Premises Equipment by Persons with Disabilities WT Docket No. 96- 198 COMMENTS OF THE MULTIMEDIA TELECOMMUNICATIONS ASSOCIATION Albert H. Kramer Robert F. Aldrich Valerie M. Furman DICKSTEIN SHAPIRO MORIN & OSHINSKY LLP 2101 L Street, N. W. Washington, DC 20037 (202) 828- 2226 Attorneys for the Multimedia Telecommunications Association June 30,1998 TABLE OF CONTENTS STATEMENT OF INTEREST AND SUMMARY THE COMMISSION'S RULES SHOULD ALLOW AND ENCOURAGE MANUFACTURERS TO PRIORITIZE ACCESSIBILITY ISSUES The Commission Should Adopt a Pragmatic Definition of Accessibility The Definition of Readily Achievable Should Recognize That What is Achievable Will Vary for Each Manufacturer Based on Individual Priorities and Resources The Commission Should Rely on Market Mechanism As the Primary Enforcer of Section 255 Any Regulatory Review of Compliance Should Focus on the Manufacturer's Overall Effort THE SECTION 255 COMPLAINT PROCESS The Commission Should Distinguish Between Consumer Inquiries and Complaints The Commission Must Establish a Threshold for the Filing of Complaints 1. General Threshold 2. Specific Threshold for Complaints About Business Equipment C. The Commission Should Re- Evaluate Its Proposed Five Day Complaint Response Time COMPATIBILITY WITH PERIPHERALS TRANSITION TIME CONSISTENCY WITH CONCURRENT EQUIPMENT AUTHORIZATION STREAMLINING PROCEEDING Before the FEDERAL COMMUNICATIONS COMMISSION Washington, DC 20554 In the Matter of Implementation of Section 255 of the Telecommunications Act of 1996 Access to Telecommunications Services, Telecommunications Equipment, and Customer Premises Equipment by Persons with Disabilities Docket No. 96- 198 MMTA is a national trade association of manufacturers, suppliers, distributors, retailers and users of customer- premises business telecommunications systems. Founded in 1970 as the North American Telephone Association ( NATA), MMTA acquired its present name in 1995, when it reorganized to reflect a broadened focus on the diversity of technologies and media now available to business telecommunications users. In 1997, MMTA became affiliated with the Telecommunications Industry Association ( TIA). MMTA exists to promote competitive markets and healthy sales and support channels for users of business communications products and services. An active participant in regulatory proceedings affecting CPE markets, MMTA supports regulatory policies that promote fair competition in the telecommunications equipment and services distribution marketplace. Many MMTA members are actively involved in manufacturing and supplying telecommunications equipment that promotes accessibility. In addition to specific efforts to add accessibility features to telecommunications products, the business telecommunications equipment industry has contributed indirectly to promoting accessibility by developing products targeted at particular market segments that have similar characteristics to some disabled equipment users. One important market segment that may lead to significant advances for accessibility advances is the area of computer-telephone integration ( CTI). See Section V. Individual members of MMTA also participate actively in the work of accessibility focused organizations, including standards bodies, such as ANSI and TIA, and other groups such as the Association of Access Engineering Specialists. In conjunction with TIA, MMTA supports the Electronic Industries Foundation's activities on behalf of enhancing accessibility of telecommunications equipment and services. MMTA generally concurs in the thrust of the comments filed in this proceeding today by TIA. MMTA's separate comments are intended to highlight issues of particular importance to MMTA's membership; i. e., to manufacturers and suppliers of business telecommunications systems. I. INTRODUCTION AND SUMMARY In the Notice, the Commission states that we intend to carry out Section 255 in a practical, commonsense manner. Notice, I 3. The Commission adds that we must allow industry the flexibility to innovate and to marshal its resources toward the end goal, rather than focusing on complying with detailed implementation rules. Id. A practical, flexible approach that encourages innovation should lead to overcoming many of the accessibility barriers facing disabled individuals. There are undoubtedly a number of measures to improve the accessibility equipment that are readily achievable today and that go beyond what has been done in the past. At the same time, as the No& recognizes, some accessibility problems are more intractable, and are not easy to resolve, at least using mainstream communications products. In addition to the important interest in improving accessibility for the disabled, there are legitimate interests in preserving a regulatory environment that encourages innovation, in minimizing cost burdens that are ultimately borne by all equipment consumers, and in focusing available resources on achievable objectives. Balancing these interests, Congress directed industry to make serious efforts, which MMTA supports, to solve those problems for which solutions are readily achievable, but did not require industry to address accessibility problems that are not easy to solve or that entail significant difficulty or expense. Given the unlimited number of disability- related issues that potentially might be addressed, the Commission should adopt rules that assist industry in directing its limited resources towards those disability-related problems that are (1) widespread enough to have benefits that justify theeffort, and (2) likely to have a useful solution that is readily achievable. The worst thing the Commission could do would be to entangle industry in a web of endless achievability assessments, compliance reviews, paperwork, and litigation concerning business judgments of manufacturers, and thereby to prevent the attainment of objectives that are within reach. The Commission should recognize that each individual company necessarily will have to set priorities for accessibility in order to effectively manage its limited design resources and to guide its assessment of what is readily achievable with the limited resources available. This is a particular issue for the business equipment industry because of the numerous types of products and features involved in business telecommunications systems. Manufacturers of business equipment necessarily will have to set priorities among numerous types of systems, system components, and associated features, and among the 18 criteria on the Access Board's checklist, in order to judge which subset of accessibility issues it is readily achievable to address. These judgments will be made based on a variety of factors that come into play for a particular manufacturer at a particular time. Thus, there is little to be gained by trying to second- guess a manufacturer's decision on one particular accessibility issue, in isolation from the manufacturer's overall accessibility efforts. Instead of trying to address particularized achievability assessments through a complaint process, the Commission should focus on stimulating market forces to encourage productive work on accessibility design. Private sector groups should be encouraged to create accessibility checklists that permit rating of disability-accessible products. A checklist and market-based rating system will provide guidance from the community of users most affected by manufacturers' business judgments, and will thereby create the most effective incentives for manufacturer compliance. The Commission should craft its rules in a manner that reflects the Congressional intent behind Section 255: to promote accessibility, but not mandate it in all circumstances. To that end, the Commission should consider a manufacturer's overall efforts to incorporate accessibility into products in determining whether there has been a violation of Section 255. Under this approach, a manufacturer who has made a good faith effort to consider accessibility issues in the design of some products should not be considered to have violated Section 255. Only if the manufacturers' pattern of behavior demonstrates that the manufacturer has made no meaningful effort to consider accessibility should the Commission find a violation of Section 255. The Commission's rules on responses to informational inquiries and complaints should reflect this basic approach. First, most of the complaints that are filed with the Commission will in fact be requests for information, and will not provide any basis for suspecting violations of Section 255. In such cases, a manufacturer should not be required to make a report to the Commission, because the Commission need not be involved in matters that are information- related only. Free flow of information regarding accessible products clearly goes hand- in- hand with the concept of accessibility and Section 255. MMTA believes that the private sector, not the Commission, should establish the information clearinghouse for disability- accessible products. Second, the Commission must set thresholds for complaints that allow industry to move forward and avoid diversion of resources to address unproductive litigation. Otherwise, those problems that do have a readily achievable solution are likely to be lost in a flood of complaints about problems to which there is no readily achievable solution. The relevant standard should be whether the manufacturer has a pattern of avoiding any effort to address what is readily achievable. In deciding complaints, the Commission should not require the manufacturer to show why an accessibility feature described in a complaint is not readily achievable. Placing such a burden on manufacturers is not in accordance with the language of the statute. In addition, it is not in accordance with the Commission's stated intent to free industry, as well as consumers, to apply their resources to solving access problems, rather than subjecting them to burdensome procedural requirements. I&& X, 1 124. Given the inherently subjective and context- specific nature of readily achievable assessments, the Commission should not attempt to second- guess a manufacturer's assessments unless there is evidence of willful non- compliance with Section 255. Third, a business telecommunications equipment manufacturer should not be subject to complaints that have not been raised initially with the complainants' employer. The employer is the customer in the business equipment context. It is unfair and counterproductive to put manufacturers in the position of addressing complaints which are in fact disputes about reasonable accommodation that are actually only resolvable between the disabled individual and his/ her employer. Fourth, the Commission should not require a response to each complaint within five days. A meaningful five- day response will rarely, if ever, be feasible, except perhaps where the manufacturer has already considered the issue raised by the complaint, and has provided a solution. Where the manufacturer has not already provided a solution, it is very unlikely that a meaningful response can be provided within five days. The Commission may require the manufacturer to acknowledge the complaint within a short time period, but should then permit the manufacturer to have a reasonable time for response. Compatibility between equipment and peripherals is more difficult to achieve in the business systems environment. However, accessibility efforts could benefit if standards can be developed based on recent successes such as CTI. The Commission's rules should recognize that standards require a collective effort, including the participation of peripheral manufacturers. The Commission's investigation of complaints should take account of the delays that have attended the development of accessibility guidelines and rules implementing Section 255, and the two- or three- year time lag inherent in designing equipment. Finally, the Commission's rules should be consistent with the objectives of the Mutual Recognition Agreement and the equipment streamlining proceeding. II. THE COMMISSION'S RULES SHOULD ALLOW AND ENCOURAGE MANUFACTURERS TO PRIORITIZE ACCESSIBILITY ISSUES Section 255( b) of the Act requires manufacturers of telecommunications equipment or customer premises equipment to ensure that the equipment is designed, developed, and fabricated to be accessible to and useable by individuals with disabilities, if readily achievable. 47 U. S. C. 8 255(b). The if readily achievable qualifier contained in Section 255 clearly recognizes that a manufacturer may not always be able to achieve accessibility in all of its product offerings. The Commission's proposal to require manufacturers to incorporate accessibility considerations into their design process is consistent with the requirements of Section 255.However, the Commission must also allow manufacturers and private sector organizations ample leeway to prioritize accessibility issues so that they do not overwhelm the product design process. A. The Commission Should Adopt a Pragmatic Definition of Accessibility The Commission proposes to define accessible in terms of access to the full functionality of equipment. In the business telecommunications environment, however, individual pieces of equipment are typically part of a complex business telecommunications system with many different components. Even in a relatively small system, there are likely to be numerous components. In addition to telephone sets, a basic business telephone system is likely to include a variety of specialized equipment or components, such as attendant consoles, call detail printers, and administration terminals. Many systems have even more specialized components because they are designed for particular applications such as SOO- number call centers, hospitals, etc. Each component of the system is typically feature- rich, with numerous programmable functions. Because each feature of each component of each system is reviewable under the Access Board's 18- point checklist, there are a gigantic number of disability issues that potentially could be considered by each manufacturer in the design of business telecom equipment. Theoretically, a manufacturer with unlimited time and resources could make an achievability determination for each feature of each component of each system vis- a- vis each of the 18 accessibility criteria identified by the Access Board. But in reality of course, manufacturers do not have unlimited time and resources. Furthermore, Section 255 does not require manufacturers to incur major costs to achieve accessibility. Therefore, especially in the business environment, it is unrealistic to expect equipment manufacturers to be able to even consider the achievability of addressing more than a small fraction of all the conceivable disability issues. In summary, while a manufacturer must make a reasonable effort to assess the achievability of access improvements, it is unreasonable to assume that a manufacturer will consider lOO%, or even a majority of the universe of possible access improvements. The Commission must allow manufacturers to limit the scope of their inquiry into accessibility issues so that the number of issues does not inundate, and ultimately paralyze, the design process. As discussed in Section C. below, the Commission should encourage private sector groups to develop a core feature checklist, that will enable manufacturers to prioritize among accessibility issues and to limit to a manageable number the issues that will be considered during the product design process. B. The Definition of %eadily Achievable Should Recognize That What is Achievable Will Vary for Each Manufacturer Based on Individual Priorities and Resources. On its face, Section 255 does not require manufacturers to make economically unsound business decisions. Section 255( b) requires manufacturers to make a three pronged determination concerning any access enabling feature or function. The three prongs of the test are: (1) is it easily accomplishable? (2) can it be carried out without much difficulty? and (3) can it be carried out without much expense? The questions raised by this three pronged test are the quintessential marketing questions: What does the market demand that we build? Can we do it? Can we do it and make a profit? If the development and manufacturing cost cannot be recovered through sales, the effort is likely to fail the test of ease, difficulty and expense. Given the market- oriented nature of the Section 255 test, it follows that the assessment of what accessibility improvements are readily achievable for a particular product of a particular manufacturer at a particular time must be an individualized and, to a great extent, subjective judgment. As the Commission recognizes, the determination of what is readily achievable for a given product at a given point in time will depend on a variety of factors, including market and life- cycle considerations. Another key factor will be a manufacturer's assignment of priorities among competing accessibility demands. Given the limited resources available to manufacturers for the design of equipment, a manufacturer's decision to incorporate some accessibility features in product design may use up all available resources, so that other accessibility features cannot be accommodated, or even fully considered. For example, a manufacturer may conclude that it is more important to have accessible station sets than accessible operator consoles, more important to have accessible consoles than accessible administrative terminals, more important to have accessible administrative terminals than accessible central processing units. Within the feature set associated with the station set, the manufacturer may assign the highest priority to call transfer, next highest to conferencing, next to speed dial, and so on. However, another manufacturer may have different priorities. The Commission should explicitly recognize, in its definition of readily achievable, that what is readily achievable for a given product or component will vary depending on each manufacturer's resources, marketing focus, and priorities, and that an accessibility feature that would be readily achievable standing alone may not be readily achievable after other competing accessibility demands have been met. In other words, what is readily achievable cannot be considered in isolation, but must be determined within the totality of accessibility issues that are under consideration with respect to all products or product lines under development. The fact that a particular accessibility function in a particular system component or feature is offered by one manufacturer and not another, or in one product and not another, is an expected result of manufacturers having different resources and priorities. It is not an indication that anyone has violated Section 255. Because assessments regarding product design and development are to a great extent subjective, because they will vary substantially from manufacturer to manufacturer as a result of differing resources, market orientations, and other factors, and because they depend on each manufacturer's overall assignment of priorities among accessibility issues, it would be counter- productive for the Commission's Section 255 regulatory process to try to second- guess manufacturers' particularized readily achievable decisions. This is especially so because any regulatory review of design decisions is likely to occur several years after the fact. A manufacturer should not be penalized for making, in the Commission's after the fact estimation, the wrong call, unless the manufacturer's decision was obviously unreasonable at the time of desigut. C. The Commission Should Rely on Market Mechanisms As the Primary Enforcer of Section 255 As shown above, manufacturers' individual achievability assessments of a particular accessibility feature are necessarily individualized, largely subjective and marketbased, and generally are not susceptible to regulatory review. It follows that the most appropriate mechanism by which to ensure Section 255 compliance is market- based. The Commission should encourage private sector organizations to use the Access Board's guidelines to develop a core checklist for evaluating products in terms of accessibility. By ranking accessibility issues in terms of demand, for particular accessibility functions, system components, in particular, features of products and such a core checklist would assist manufacturers to identify and prioritize accessibility issues when designing products. The public - specifically, equipment purchasers, individuals with disabilities and interested organizations - could evaluate individual products and the manufacturers against the core checklist. For example, the checklist could be included in requests for proposals by large equipment purchases. The publication of a checklist would encourage manufacturers to make their products as accessible as feasible, in order to receive good product and company ratings from the disabled community, sell more products to disabled individuals and their employers and maintain a positive public image. By using the leverage of the market to encourage more effective allocation of manufacturers' design resources, a market- based checklist approach will enforce Section 255 far more effectively than any regulatory process, while avoiding unnecessary and unreasonable regulatory burdens. D. Any Regulatory Review of Compliance Should Focus on the Manufacturer's Overall Effort. As demonstrated above, the accessibility functions that are found to be readily achievable for any product will depend largely on each manufacturer's individual resources, marketing focus, and priorities. Further, what is readily achievable in particular cases cannot be judged in isolation from a manufacturer's overall allocation of resources among competing accessibility demands. Therefore, any regulatory review of a manufacturer's compliance with Section 255 cannot be narrowly focused on one feature, product, or accessibility function. Rather, the test of whether a manufacturer has violated Section 255 should turn on whether that manufacturer, in its overall readily achievable assessments, has made such assessments in accord with the Commission's good faith effort [2] guidelines. The Commission should make the overall effort by a manufacturer to consider accessibility in product designs the determining factor of whether there has been a violation of Section 255. A manufacturer who has made a good faith effort to include accessibility considerations in the design of its products not be considered to have violated Section 255: and a finding that a manufacturer has violated Section 255 would be reserved for situations in which there has been a pattern of behavior which demonstrates that the manufacturer has made no real effort to comply with its obligations under Section 255. Such a determination should be made on a company, rather than product- by- product, basis. In the broad sense, access issues are visual, audio or mechanical. If a manufacturer considers access in these three broad areas and makes reasonable efforts to assess ease of accomplishment, level of effort and expense, the manufacturer should be deemed to have complied with the law. III. THE SECTION 255 COMPLAINT PROCESS The Commission's rules governing responses to information inquiries and complaints should reflect the substantive principles described in Section II. The rules should encourage free dissemination of information about accessibility of products, and should channel accessibility efforts into current marketplace activity rather than litigation over past equipment design decisions. A. The Commission Should Distinguish Between Consumer Inquiries and Complaints In its Notice, the Commission has proposed a fast- track process to initially address consumer issues that arise under Section 255 of the Act. Notice, 1 125. Under this process, consumers who are dissatisfied with the accessibility of equipment would contact the Commission. The Commission would refer the matter to the manufacturer, who would be required to attempt to solve the consumer's access problem and report back to the Commission within five business days. Id. The Commission would review the response and determine whether there is a possible violation of Section 255. The Commission's proposal should be modified. As currently formulated, it commingles two processes that serve distinct purposes: (1) providing information and assistance to disabled individuals who are currently trying to find equipment that meets their needs; and (2) bringing to justice manufacturers and service providers that failed to comply with Section 25 5. These are two quite different functions. The issues to be addressed and the parties involved in the information- assistance and complaint processes are quite different - especially in the context of business telecommunications systems. One of the reasons for the mismatch is the forward- looking nature of Section 255. Under Section 255, manufacturers must incorporate accessibility in the design of equipment. The steps manufacturers take in the design process, however, will bear fruit only in the future - typically two or three years after the product is initially developed. In the information- assistance process, however, the disabled consumer needs immediate help to solve an accessibility problem, here and now. While the manufacturer has a role to play in this process, the products that the manufacturer has available to solve that consumer’s immediate problem are limited to those products that have previously been designed, developed and fabricated to incorporate accessibility features or to be compatible with accessible peripheral equipment. 47 U. S. C. $ 255. The manufacturer generally will not readily be able to provide an accessibility feature that was not incorporated when the product was originally designed or manufactured. Thus, the manufacturer cannot solve the consumer's present- day problem by designing a new product unless the consumer is willing to wait several years. In short, the issue to be addressed in resolving the problems in the here and now do not involve whether an accessibility feature is readily achievable (as a matter of equipment design). Instead, the issues involve determining what kind of equipment is currently available. Where a fully accessible product was not readily achievable or is not available at a price that is economical for the employer, substitute products may be used as a means of reasonably accommodating a particular disability, even where the substitute product is a less- than perfect substitute. In short, because of the looking- forward nature of Section 255 and the soon- to be- implemented Commission rules regarding Section 255, the Commission's proposal to simply put the manufacturer and the disabled user together to work it out informally will not achieve the Commission's intended result - resolution of the matter. A second area of mismatch is that the information- inquiry process necessarily involves other parties. For example, in addition to the original manufacturer, the retailer that sold the system may be involved. That retailer may have equipment from other manufacturers that meets the consumer's needs. Furthermore, in the business context, solving a consumer's accessibility problem usually involves an even more important player the disabled individual's employer. It is ultimately the employer who decides what type of equipment will be purchased for the use of employees. Thus, the assumption that Section 255 can be most effectively implemented by bringing about exchange of information between a disabled individual and a manufacturer, simply does not apply to the business context. In that arena, the most important and effective interactions are likely to be between the disabled employee and employer, on the one hand, and between the employer and the equipment retailer, on the other. Indeed, employers are subject to a separate obligation, under the Americans with Disabilities Act, to make reasonable accommodations for employees' disabilities. 47 CFR § 12112( b)( 5). Thus, employers already have a duty to seek out, in the marketplace, equipment solutions that reasonably accommodate the disabilities of employees or prospective employees. To most effectively implement Section 255 in the business equipment context, the Commission should build on these existing obligations of employers, and seek ways to stimulate the marketplace to respond by providing equipment that reasonably accommodates disabled employees. In the business equipment context, it is not just the manufacturer and the disabled equipment user factor into the accessibility mix, but also the disabled equipment users employer and the retailer who sold the employer the telecommunications system, Under the Commission's proposal to bring the manufacturer and the disabled equipment user together for problem- solving, these key people are not part of the discussion, In some cases, the manufacturer may have something to contribute to resolving the consumer's present- day problem, such as substitute equipment that can at least partially accommodate the user's disability, but without the employer present, neither the manufacturer nor the user will be able to get employer approval to implement the substitute mechanism to solve the user's problem. Relying on the market to solve the here and now problems of disabled individuals is more effective than trying to directly intervene to solve the problem by bringing together all the affected parties in a forced information exchange. This is particularly true in the business systems context where so many parties are involved. Accordingly, the Commission must recognize the distinction between inquiries and complaints, and provide for different treatment of each. In its Notice, the Commission proposes to provide manufacturer and service provider contact information to consumers. Notice, 17 126 and 128. To that end, the Commission proposes to require from manufacturers and providers the name or title of the contact person, mailing address, and alternate contact methods (telephone number, TTY number, facsimile number, or electronic mail address). The Commission also proposes to require equipment manufacturers and service providers to establish multiple contact methods, accessible to as many disabilities as possible, that identify all alternatives available. MMTA generally agrees that manufacturers should have points of contact for making information available to individuals with disabilities. However, as discussed above, in the business equipment context the equipment purchaser is the employer, not the ultimate end user. In solving a disability- related problem in this context, the manufacturer's primary contact will be the employer, or retailer, not the consumer. Therefore, it is less likely to be productive for manufacturers of business telecom equipment to spend time and resources setting up systems to accommodate a wide variety of alternate forms of communications with disabled individuals. It should be sufficient for manufacturers to provide the transmission of product information and inquiry requests via the more common forms of communications, such as telephone, facsimile and electronic mail. B. The Commission Must Establish a Threshold for the Filing of Complaints. Treating consumer inquiries separately from complaints is appropriate for another reason as well. A manufacturer's inability to provide equipment that meets a particular accessibility need does not constitute evidence that the manufacturer is in violation of the Act. [3] Under the Commission's current proposal, a manufacturer's response to an inquiry triggers Commission review of whether the provision of the product is readily achievable and whether the manufacturer involved has an underlying compliance problem. Opening these issues is appropriate only if there is evidence that a manufacturer has violated the Act by failing to make a good- faith effort to assess what is readily achievable. MMTA recognizes that a complaint process is necessary in order to discipline those manufacturers that disregard their Section 255 obligations. However, it is unnecessary and counterproductive to adopt a complaint process that treats every consumer contact with the Commission as a potential complaint. The Commission should not be expending its resources on investigating individual complaints about whether a particular accessibility feature is readily achievable in a particular product. As discussed above, each manufacturer necessarily must determine what is readily achievable based on a prioritization of competing demands for various forms of accessibility in particular products and among all the manufacturer's products. Thus, readily achievable assessments necessarily will be individualized and even subjective. Therefore, no useful purpose can be served by complaint investigations that laboriously second- guess, in isolation from each other, a manufacturer's readily achievable assessment for particular features and products. Unless a manufacturer has made no good- faith effort to determine which accessibility features are readily achievable, there can be no legitimate basis for launching intrusive investigations of individual assessments. No manufacturer should be subject to a complaint investigation unless there is evidence that the manufacturer has failed to make any good- faith effort to consider accessibility in the design processes for any of its products. Therefore, in order to ensure that the process flows efficiently and doesn't divert energy or resources from valid issues requiring resolution to complaints that lack merit or that could be resolved without Commission intervention, the Commission must establish some basic thresholds to be met by individuals who file actual complaints. Any such standards must also ensure fair treatment of manufacturers and avoid unnecessary and burdensome complaint procedures. 1. General Threshold The bare allegation that a manufacturer has failed to include a particular readily achievable accessibility feature or features should not be sufficient to establish a prima facie case of a Section 255 violation. At a minimum, the complainant should be required to provide evidence indicating that there is reason to believe a feature is readily achievable. Otherwise, manufacturers will be continually required to prove a negative - i. e., that this or that requested feature is not readily achievable. This approach contravenes the plain language of Section 255, and also disserves the Commission's stated purpose to permit flexibility in complying with Section 255. More fundamentally, however, a complaint limited to a single product or accessibility feature should not be sufficient to state a claim for relief under Section 255. As discussed above, it requires a highly individualized and even subjective decision, on the part of each manufacturer, to decide how to use the limited resources available for designing accessibility features into products. One manufacturer may concentrate its efforts in one area, another may choose to focus on a different area. No useful purpose would be served by second- guessing each manufacturer's priorities. Accordingly, in response to any complaint about the absence of a particular accessibility feature from a particular product, the inevitable (and entirely sufficient) answer would be: It wasn't readily achievable for me, because my available resources were focused on other priorities. The complaint process will become a pointless exercise that unnecessarily consumes the available resources of all parties involved. On the other hand, it would be appropriate to invoke the complaint process against a manufacturer that has made little or no effort to identify and incorporate LWZ~ readily achievable features in ltny of its products. In addition, the Commission should require consumers to contact, or indicate an attempt to contact, the relevant manufacturer, as a prerequisite to filing a complaint. As stated above, the Commission proposes to create a comprehensive list of manufacturers and service providers subject to Section 255. Again, the Commission's goal in establishing such a contact system is to encourage both the flow of information regarding product availability and informal resolution of complaints. By requiring the disabled consumer to contact, or attempt to contact, the manufacturer or service provider as a precondition to filing a complaint, the Commission will balance the needs of both consumers and manufacturers and service providers, as well as reduce the number of complaints received by the Commission. Thus, the Commission will accomplish its dual goal of facilitating informal resolution of issues between consumers and manufacturers and service providers and reserving the complaint process for true complaints. 2. Specific Threshold for Complaints About Business Equipment. The Commission should also require a specific complaint threshold with respect to business equipment. In the case of business equipment, the equipment purchaser is usually the equipment user's employer. Under the Commission's proposal, however, the disabled user would be permitted to file a complaint regarding business equipment at any time, without any prior employer consultation. [4] The Commission's proposal could lead to the filing of numerous complaints against manufacturers by disabled employees that demand accessibility features never requested from the manufacturer by its customer, the employer. Accordingly, the Commission must establish threshold requirements for the filing of complaints regarding business equipment. Specifically, the Commission should require, in the case of business equipment, that a disabled user's business equipment accessibility issue (s) be raised with his or her employer before a complaint against the manufacturer may be filed with the Commission. The manufacturer may or may not have a product that would provide accessibility to the disabled user, but the availability or achievability of the product is a moot point if the employer never asks for it. If the employer is not willing to request or purchase an accessibility feature, then the employee's complaint is clearly with the employer, not the manufacturer. On the other hand, if the manufacturer has not designed or developed the product because no employer has requested it: the employee's first recourse should be with the employer. The employer will either need to accommodate the employee by use of another manufacturer's product, a peripheral device, or not at all. It is unfair and counter- productive, however, for the Commission to put manufacturers in the position of defending a complaint that is actually between a disabled user and his or her employer. [5] c. The Commission Should I& z- Evaluate Its Proposed Five Day Complaint Response Time. In its Notice, the Commission has proposed a complaint [6] response time of five business days from the date that the complaint is forwarded by the Commission to the manufacturer. However, because such notices are forwarded via U. S. Mail, it could take days for the manufacturer to receive the complaint, and thus, the manufacturer's response time will not be a true five business days. So the time should run from receipt of the complaint. Moreover, even if the complaint were received instantaneously, the Commission must take into account the processes involved in responding to such complaints, and must recognize that in most cases such a short turn-around period would not provide the manufacturer with sufficient time to study the complaint, gather information, and identify possible accessibility solutions. Even in situations where the complaint identifies an accessibility issue that the manufacturer has addressed in the past, assembling the information necessary to supply the Commission and the consumer with a complete response might still take longer than the five- business day period proposed by the Commission. In cases where the complaint identifies an accessibility issue of first impression to the manufacturer, a complete response will certainly require more time than the proposed five-business day period would permit. An unduly short turn-around time will not advance accessibility. Rather, it will merely incent manufacturers to paper the record with readily accessible information to demonstrate why any particular accessibility feature is not readily achievable. The Commission should not encourage hasty investigation and reporting by manufacturers. Accordingly, the Commission must reevaluate its proposed five day complaint response time in light of concerns about the timing of complaint delivery and depth of information required to be submitted in response to complaints. [7] In its Notice, the Commission specifically recognized that there may be instances where a five- business- day period may be enough time for a provider to assess a problem and begin to resolve it, but not long enough to complete the resolution. In such cases, the Commission proposes to permit manufacturers and service providers to provide the Commission with an informal progress report and request additional time to continue their problem- solving efforts. This procedure is appropriate not only for the exceptional case, but for any case where a product is not currently available to satisfy an inquiry or complaint. Rather than requiring manufacturers to respond to complaints within five business days, the Commission should require manufacturers to acknowledge receipt of complaints within a relatively short period, and to concurrently provide the Commission with an anticipated response date. In order to ensure that manufacturers make resolution of complaints a priority, the Commission could require that the response date selected by the manufacturer be within sixty days after the date of acknowledgment. The response date would then be duly noted bythe Commission: and the manufacturer would be bound to respond by that date, unless an extension of time was granted. [8] Such a response system would provide manufacturers with sufficient time to thoughtfully and effective respond to complaints, while at the same time not permitting complaints to go unanswered for extended periods of time. The Commission should refrain from applying its proposed complaint process to product inquiries or information requests submitted by consumers. Although MMTA agrees that manufacturers should be required to respond within a reasonable time to the product inquiries and information requests they receive, the response should not be given to the Commission via the proposed complaint process. A response to the Commission should be limited to situations in which the manufacturer has made no meaningfirl effort to respond to the consumer, or has ignored the consumer altogether. Such matters are more appropriately handled in the private sector, among manufacturers and disabled users, their employers and the retailers that sell equipment to their employers. IV. COMPATIBILITY WITH PERIPHERALS Under Section 255, if equipment is not directly accessible, it should be compatible with peripheral devices, if that is readily achievable. The FCC should recognize, however, that universal compatibility is generally more difficult to achieve in the business systems environment, where the connections of equipment within a system often use proprietary technology. Compatibility is also difficult to achieve because of the disparate technologies involved. For example, many accessibility issues involve the conversion of voice communications to data, or vice versa. Integration of voice and data, of course, has long been an elusive goal for business telecommunications systems. However, in the 1990s a good deal of progress has been made toward more effective integration of computer and telephone systems on the business premises. Of critical importance to the success of computer- telephone integration (CT.) has been the development of standards. CTI has benefitted from a series of standards efforts, including the Enterprise Computer Telephony Forum (ECTF), in which 70 companies are working to ensure CTI interoperability. In addition, individual companies have developed technologies that have become de facto standards, including Microsoft's Telephony Applications Programming Interface ( TAP,) and Novell's Telephony Services Applications Programming Interface ( TSAPI). A further step that would advance CTI is the development of a unified messaging system, in which voice, data and even video messages could be left in a universal mailbox. Accessibility efforts potentially could build on the successful development of standards- based CTI. The standardization of a universal interface for voice and data transmission between telecommunication manufacturers' equipment and assistive device manufacturers' equipment would facilitate connectability. Such an assistive device interface technology ( ADIT) would have standard signaling for specific operations. A universal interface would allow customer premise equipment ( WE) with proprietary technology to incorporate the ADIT directly or allow a converter device to change the ADIT signaling to the CPE signaling. In order to facilitate making equipment compatible with peripheral devices, however, the FCC's final rules must underscore the responsibility of adaptive device manufacturers to work with equipment manufacturers to ensure compatibility. In the past, the deployment of a standard interface - e. g., for hearing aids and telephone handsets - was delayed because both industry groups did not have the same incentive to cooperate. The Commission should be prepared to intervene where necessary to overcome obstacles to the development of workable standards. However, individual equipment manufacturers should not be sanctioned for being unable to readily achieve accessibility due to delays in the collective development of industry- wide standards. V. TRANSITION TIME In its Notice, the Commission notes that Section 255 of the Act became effective on February 8, 1996. [9] Although manufacturers arguably may be already under some degree of obligation to comply with Section 255, the Access Board's guidelines regarding Section 255 compliance were not publicly released until February, 1998. The Access Board's guidelines constitute the first meaningful form of notice for manufacturers of what is expected of them under Section 255. In addition, the Commission has only just begun to implement Section 255 and clarify manufacturers' responsibilities under that provision. As evidenced by the fact that the Commission has instituted a rulemaking proceeding to implement Section 255, the statutory requirements of Section 255 cannot be considered entirely straightforward or self-executing. While the Commission's final rules will provide important guidance, manufacturers will need time to familiarize themselves with those rules and implement revised product design and evaluation procedures. Accordingly, the Commission should provide manufacturers with a reasonable transition period, such as two years, after final rules are adopted within which to implement design and manufacturing processes that are consistent with the Commission's final rules. Manufacturers conceiving and designing products in the wake of the release of the Access Board's guidelines and the Commission's implementation rules can rely on those guidelines and rules and, as a result, can make more thoughtful and thorough accessibility and readily achievable assessments in their product designs. However, in evaluating a manufacturer's accessibility decisions, the Commission must take into account the significant lag time involved between the time a product is conceived and designed, and the time it is manufactured and delivered to the marketplace. Products that have been manufactured and marketed in the two years since the Act's enactment were likely conceived and designed prior to the time that Section 255 took effect. Although they are post- Act products, such products were pre- Act designed, and the accessibility and readily achievable assessments required in the post- Act environment were not required in pre- Act. Similarly, there are many products that have been conceived and designed since the time that Section 255 took effect, but are just now being manufactured or marketed. However, because those products were conceived and designed before the Commission's implementation and clarification of manufacturers' responsibilities under Section 255 of the Act, the accessibility and readily achievable assessments made during the post- Act/ pre-Commission implementation period may not have been what the Commission will heretofore consider complete and thorough. The same may also be true for products that are being conceived and designed now, but will not be manufactured for quite some time. The Commission, therefore, should not rely on hindsight in evaluating a manufacturer’s accessibility and readily achievable decisions. VI. CONSISTENCY WITH CONCURRENT EQUIPMENT AUTHORIZATION STREAMLINING PROCEEDING The Commission has consistently sought to promote competition in the business telecom equipment market by removing unnecessary restrictions on customer interconnection of privately beneficial telecommunications equipment. As part of the Commission's biennial review of its rules and processes, the Commission has instituted a rulemaking proceeding to another streamline its authorization rules for terminal equipment that may be attached to the telephone network. In that proceeding, the Commission also proposes to implement the Mutual Recognition Agreement ( MRA) between the U. S. and the European Union ( EU). The rule modifications that will result from that proceeding are intended to improve the efficiency process so that communications equipment may be introduced more rapidly both in the U. S. and abroad. The MRA’s main objective is to reduce the time it takes for manufacturers to get products into the markets of signatory countries by enabling manufacturers to have products approved by either the U. S. or the EU. MMTA is concerned that the rules adopted in this proceeding be consistent with the letter and spirit of the MRA and the Commission's equipment authorization streamlining effort. Accordingly, the Commission should ensure that its implementation of Section 255 does not result in the erection of new barriers to free interconnection and competition in telecom equipment. June 30,1998 Respectfully submitted, Robert F. Aldrich Valerie M. Furman DICKSTEIN SHAPIRO MORIN & OSHINSKY LLP 2101 L Street, N. W. Washington, DC 20037 (202) 828- 2226 Attorneys for Multimedia Telecommunications Association Endnotes 1 Pursuant to the Commission’s Notice of Proposed m (Notice) in Docket No, 96- 198, released April 20, 1998, Multimedia Telecommunications Association ( MMTA) hereby respectfully submits its comments regarding the Commission's proposed implementation of Section 255 of the Telecommunications Act ( Act). 2 A manufacturer would be deemed to have made a good faith effort to comply with Section 255 by showing that it had attempted to increase the accessibility of it products by taking some or all of the actions described in 1[ 165 of the Notice. 3 Indeed, given the vast number of possible accessibility issues that can arise in the business telecommunications system context, a manufacturer’s inability to even consider most of these issues cannot be considered a violation of the Act. Given the costs involved in the design process, it is not readily achievable for even large manufacturers to even consider more than a fraction of all possible accessibility demands. 4 In fact, the Notice does not expressly limit the class of complainants to disabled equipment users. To prevent complaints, a general standing requirement should be adopted. 5 Again, manufacturers should not be deemed to have violated Section 255 because they have made legitimate and reasonable business decisions not, to manufacture particular accessibility products due to the lack of a market for such products. The Commission clearly cannot penalize manufacturers after the fact for electing not to spend their often limited time and resources developing products that they will have little or no likelihood of selling to a consumer. 6 Again, the Commission proposes to apply this same complaint process to information requests. For the reasons stated in Section III, A, above, the Commission must distinguish complaints from information requests, and provide for separate treatment of each. 7 The Commission's administrative burden in recording report deadlines under MMTA's proposal would be no greater than it would be under the Commission's proposal, as the Commission will already have to document and monitor complaint response deadlines under its proposed five day report deadline system. 8 It is likely that many manufacturers will need to seek extensions of time within which to respond to the complaints due to the short, five- business day response time frame proposed by the Commission. Providing manufacturers with additional time to respond to complaints initially will lead to fewer requests for extensions of time. 9 Notice, at 77 8 and 175.