Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D. C. In the Matter of Implementation of Section 255 of the Telecommunications Act of 1996 Access to Telecommunications Services, Telecommunications Equipment, and Customer Premises Equipment By Persons with Disabilities WT Docket No. 96- 198 COMMENTS OF THE NATIONAL ASSOCIATION OF THE DEAF I. Introduction The National Association of the Deaf (NAD) submits these comments in response to the Federal Communication Commission's (FCC's or Commission's) Notice of Proposed Rulemaking (NPRM) regarding access to telecommunications services, telecommunications equipment, and customer premises equipment (CPE) by persons with disabilities, WT Docket No. 96- 198 (released April 20, 1998). The NAD applauds the FCC for having taken this major step toward achieving the effective implementation of Section 255 of the Telecommunications Act of 1996. The NAD is the nation's largest organization safeguarding the accessibility and civil rights of 28 million deaf and hard of hearing Americans in education, employment, health care, and telecommunications. The NAD is a private, non- profit federation of 51 state association affiliates including the District of Columbia, organizational affiliates, and direct members. The NAD seeks to assure a comprehensive, coordinated system of services that is accessible to Americans who are deaf and hard of hearing, enabling them to achieve their maximum potential through increased independence, productivity, and integration. As our society moves toward increasingly advanced telecommunications tools, deaf and hard of hearing people remain unable to access many devices and services that continue to rely on auditory and verbal input and output. Section 255 of the Telecommunications Act of 1996 was intended to change all this, and to bring the benefits of the telecommunications revolution to all Americans, including those who had previously faced physical barriers to telecommunications products and services. The Commission's implementation of this section will have a profound effect on the ability of these new technologies and services to reach Americans with disabilities. We submit the comments below in the interest of achieving this far-reaching goal, so that deaf and hard of hearing individuals can utilize telecommunications advances to expand employment, recreational, and educational opportunities. II. The FCC has Ample Authority to Adopt Regulations and to Enforce Section 255 The FCC is correct in concluding that it has sufficient authority to adopt regulations to enforce Section 255 under Section 255 itself, as well as Sections 4( i), 201, and 303( r) of the Telecommunications Act. NPRM para. 27[1] Rather, specific guidance from the Commission is necessary to ensure the most efficient implementation of Section 255's mandates. An approach that provides an efficient, orderly, and uniform regime governing access to telecommunications services and equipment will best serve both consumers and industry. NPRM 24. It is not clear, however, that the NPRM, as drafted, provides the certainty needed for the effective application of Section 255's mandates. We are hopeful that clear direction on these issues will be offered by the Commission in its final rules, to avoid inconsistency and confusion in the implementation of Section 255. There is also no doubt that Section 255( f) authorizes the Commission to receive and resolve administrative complaints against both service providers and equipment manufacturers. Indeed, this was the very reason that Congress vested the FCC with exclusive jurisdiction over all complaints under Section 255. III. The FCC Should Adopt and Enforce theAccess Board Guidelines Although there is no question that Congress intended for the FCC to adopt regulations implementing Section 255, the Legislature intended as well that the Architectural and Transportation Barriers Compliance Board (Access Board) would be the primary agency - with the FCC's assistance - to develop guidelines for telecommunications equipment manufacturers. It was for this purpose that, as the FCC notes, the Access Board convened the Telecommunications Access Advisory Committee (TAAC), a committee which contained balanced representation of equipment manufacturers, telecommunications providers, software firms, and individuals with disabilities. See NPRM para.12. Notwithstanding the very diverse viewpoints represented by the members of the TAAC, the TAAC produced a number of agreements for the effective implementation of Section 255, which then formed the basis for guidelines promulgated by the Access Board on February 3, 1998. These guidelines are further supported by a full administrative record – the product of notice and comment from approximately sixty one organizations and individuals. Prior to this FCC proceeding, then, there were extensive opportunities for the various parties of interest to participate in the development of and contribute to the final Access Board guidelines. Accordingly, we urge that the FCC adopt these guidelines in whole, and adapt them where necessary, for telecommunications services. In its NPRM, the FCC states that it views the Board's guidelines as its starting point for the implementation of Section 255. NPRM 30. Yet the extent to which these guidelines will form the basis for the FCC's enforcement is vague throughout the NPRM. Although the FCC does propose to adopt the Access Board's definition of accessibility, including its requirements for access to input, output, control, display, and mechanic functions, NPRM 74- 75, the Commission fails to make clear that efforts to achieve such access functions are affirmatively required of all telecommunications companies, and not merely suggested as a means for having achieved compliance only after a complaint has been filed. The Access Board's guidelines provide the specificity needed to achieve access without stifling innovation or competition. By requiring consideration of individuals with disabilities in market research, product design, testing, pilot demonstrations and product trials only where such activities are already undertaken, the guidelines ensure that the needs of individuals with disabilities will be fully considered and incorporated in the design, development, and fabrication of products without being burdensome. 36 C. F. R. 1193.23. These requirements, originally contained in the TAAC recommendations for manufacturers, can easily be adapted to service providers, and should be adopted in the FCC's final rules, for compliance with Section 255 to be fully realized. For similar reasons, we support the FCC's proposal to adopt the Access Board's requirement for the pass- through of cross- manufacturer, non- proprietary, industry- standard codes, translation protocols, formats or other information necessary to provide telecommunications in an accessible format, for both manufacturers and service providers. NPRM 74. 2 A. Accessibility and Usability We are concerned about the FCC's proposal to combine the concepts of accessibility and usability under the term accessibility, and to define that term in the broad sense to refer to the ability of persons with disabilities to actually use the equipment or service by virtue of its inherent capabilities and functions. NPRM 73. Although the concepts of accessibility and usability are related, and are both directed at ultimately achieving universal access, we disagree with the FCC that Section 255 does not establish separate requirements for accessibility and usability,NPRM para. para73. In fact, the requirements of usability are quite distinct from those needed to achieve accessibility. As the FCC notes, requiring that a product or service is usable means that individuals must have access to the full functionality and documentation for the product, including instructions, product information, (including accessible feature information), documentation, and technical support. . .NPRM para. 72. The importance of such access cannot be overstated. An accessible product has little value to an individual who does not have access to information on how to use that product. Yet theNPRM para. is not clear on the extent to which such access to product information will in fact be required. Although the FCC proposes to adopt the Access Board's definition of usability,NPRM para. 73, later in theNPRM para., the FCC states that after a complaint has been filed, a respondent may demonstrate that it has undertaken good faith efforts to comply with Section 255 by, among other things, providing user information and support features required by the Board's guidelines.NPRM para. 164- 65. The FCC goes on to state that it does not expect all firms to adopt all of these usability requirements. Rather, the FCC explains, each firm should thoughtfully consider the guidelines in light of the situation and the degree to which its products have or lack accessibility features, and then adopt those which will help it provide the accessibility Section 255 requires.NPRM para. 166. We oppose such an approach. Without clear regulatory requirements for usability, full access to a product cannot be achieved. It is critical that the FCC include, in its final rules, specific regulatory language defining the obligations of manufacturers and service providers to make their offerings usable. Toward that end, we strongly urge adoption, in whole, of the Access Board guidelines contained at 36 C. F. R. 1193.33, requiring access to product and service information and documentation on the product itself and its accessibility features, including information contained in user and installation guides. Among other things, this guideline also requires that to the extent that such information is made available to the general public, it should be made available in accessible formats or modes upon request at no extra charge, and that manufacturers should include the name and contact means for obtaining information about accessibility features, as well as the means of obtaining documents in alternate formats, in general product information. Finally, this section provides guidance for employee training and requires customer and technical support provided at call and service centers to be accessible by people with disabilities. All of these features will be critical to the effective implementation of Section 255 and should be required by the FCC. For people who are deaf and hard of hearing, the Appendix to this Access Board guideline explains that this section might require captioning on video cassettes containing product instructions, direct TTY access to customer service lines, text transcriptions for audio output on Internet postings, and automated authority have direct control.NPRM para. 79. TTY response systems that detect whether a caller is using voice or TTY, all features vital to usability for the consumer. [3] B. Compatibility Section 255 requires that where accessibility is not readily achievable, telecommunications offerings must be compatible with peripheral devices or specialized CPE commonly used by individuals with disabilities to achieve access, if readily achievable. The FCC proposes to adopt the Access Board's list of five criteria as a starting point for determining compatibility.NPRM para. 92. We support this proposal, but urge the Commission to make clear that the factors contained in the Access Board guideline on compatibility contained at 36 C. F. R. 1193.51, are required, where applicable, rather than options to be considered in a good faith determination after a complaint has been filed. The Commission suggests that it is not necessary to distinguish between peripheral devices commonly used . . . to achieve access and specialized CPE because both identify products with a specific telecommunications functionality.NPRM para. 84. For the most part, this is consistent with prior constructions of these terms; thus, we support this FCC proposal. However, the FCC also proposes that devices and specialized CPE should be considered commonly used by people with disabilities when they are affordable and widely available. We oppose this definition. First, many specialized devices - e. g. telebrailles (telephone devices for individuals who are deaf and blind) - are not very affordable, costing as much as several thousand dollars each. Second, because of the limited populations using these devices, often these devices are not what would commonly be considered widespread. In place of the FCC's definition, the NAD proposes that, in determining whether a device or specialized CPE is commonly used, the FCC should consider whether people with disabilities would use the device if available, and the extent to which the device would be functionally effective among the disability group for which the product was intended. Such a definition would eliminate ineffective fringe devices that would not likely be used by individuals with disabilities, yet would also encompass new and efficient technologies which might not yet be widespread. Consistent with this approach, we do support the FCC's proposal that there be a rebuttable presumption that when a device is distributed through a state equipment distribution program, it is commonly used by people with disabilities. Finally, the Commission asks whether and how a list of commonly used components should be maintained so that individuals with disabilities may be apprised of available technologies.NPRM para. 90. The existence of such a list would be very useful for people with disabilities. The pooled expertise of a variety of disability organizations and specialized equipment manufacturers would, with the assistance of the FCC's Disabilities Issues Task Force (DITF), be capable of compiling such a list. Additionally, the recently formed Association of Access Engineering Specialists may be an appropriate mechanism, again in conjunction with DITF, to maintain and update such a list. Notice of the availability of such a list, and the list itself, if posted on the Internet, would provide an invaluable resource for consumers and industry alike. IV. Telecommunications Services Should be Defined in a Manner Consistent with the Objectives of Section 255 to Expand Access to Advanced Telecommunications Services. The FCC proposes to cover two types of telecommunications services under its Section 255 rules: basic services and adjunct- to- basic services. NPRM 35- 43. The FCC questions, however, the extent to which enhanced, or information services, fall into the category of telecommunications services that must be accessible under Section 255. A. A Narrow Construction of Telecommunications Services Would Defeat the Purposes of Section 255. Through its passage of Section 255, Congress contemplated that all advanced telecommunications services, including many, if not all, services that have historically been categorized as enhanced or information services, would become accessible to individuals with disabilities, if readily achievable. It was the overarching intent of Congress, through its enactment of this section, to bring Americans with disabilities into the mainstream of the technological age by ensuring access to new telecommunications advances that will be used in our schools, employment and recreational activities. To limit people with disabilities to only basic or adjunct- to- basic services would defeat this very goal. This is evidenced, in part on the Senate's own report on this accessibility provision: The Committee recognizes the importance of access to communications for all Americans. The Committee hopes that this requirement will foster the design, development, and inclusion of new features in communications technologies that permit more ready accessibility of communications technology by individuals with disabilities. The committee also regards this new section as preparation for the future given that a growing number of Americans have disabilities. [4] That Congress intended for new, rather than dated, technologies to be accessible to individuals with disabilities is evidenced as well by the fact that previous federal legislation had already addressed, to a large extent, access to basic voice telephony. [5] Certainly the Legislature intended that the scope of this new law would exceed that of its predecessors. The FCC may be concerned about having different interpretations of telecommunications services for different FCC proceedings. But the FCC will be acting well within accepted legal doctrines if it chooses to broaden the scope of services that are covered under Section 255 while maintaining other existing interpretations of telecommunications services. Patterned after the ADA, Section 255 was intended to be a civil rights provision which would end discrimination against individuals with disabilities who, prior to Section 255 could not access telecommunications products and services. Courts have consistently interpreted civil rights statutes liberally, to effectuate the remedial purposes for which these statutes were created. See e. g., Gates v. Collier (liberally construing Civil Rights Attorneys' Fee Awards Act) [6] ; United States v. DeRosier (liberally interpreting Civil Rights Act of 1964). [7] When viewed in this light, one must, first and foremost, consider the objectives for which Section 255 was created. As we move into the 21st century, we are all too aware that advanced telecommunications technologies will continue to change the way we conduct our lives on a daily basis. Congress, too, was aware of the pervasive influence that these advancements would have on our daily existence and wished to ensure the inclusion of people with disabilities in the enjoyment of these benefits. This would not be the first time that an application of prior FCC rulings needed to be adjusted for the purpose of ensuring access by individuals with disabilities. For example, in the Telecommunications for the Disabled Act of 1982, 8 Congress modified the FCC's decision to 11 detariff customer premises equipment (CPE) nationwide, so that individuals with disabilities could continue to afford specialized telecommunications equipment. The 1982 Act was a response to the FCC's ruling in its Second Computer Inquiry (Computer II), one of the proceedings upon which the FCC is again relying in drawing its distinction between telecommunications and enhanced services. In Computer II, the Commission had ordered telephone companies to separate the sale and rental of their equipment from their regulated services. 9 By detariffing CPE and requiring users to pay the full cost of that equipment, the FCC had hoped to create competition among the sellers of CPE which would, in turn, drive down prices. However, because many telephone companies had been offsetting the high costs of providing specialized customer premises equipment with revenues from other services, individuals with disabilities would now be faced with having to pay the full costs when buying this equipment. The 1982 Act reversed the Computer II ruling for equipment used by individuals with disabilities, expressly allowing the states to require carriers to continue providing subsidies for such equipment. The goal was to ensure that individuals with hearing, speech, vision, and mobility disabilities would have continued telecommunications access. Similarly, the arguments for narrowly defining telecommunications services, to the exclusion of enhanced or information services, cannot withstand scrutiny when applied in the context of telecommunications access for people with disabilities. Indeed when one considers the principal reason for construing telecommunications services narrowly, one can readily see that this reason does not stand up in the context of disability access. Specifically, in its report to Congress on universal service, the FCC established the need to encourage competition as the primary, if not the only reason for excluding information services from its definition of 9 Second Computer Inquiry (Computer II), 77 FCC 2d 384, 446- 47 (1980), recon. 84 FCC 2d 50 (1981), further recon. 88 FCC 2d 512 (1981), aff’d sub nom. Computer & Communications Indus. Assoc. v. FCC, 693 F. 2d 198 (D. C. Cir. 1982), cert. denied, 461 U. S. 938 (1983) 12 telecommunications services. 10 For example, the report quotes Senator McCain as stating that it was not Congress's intent in enacting the supposedly pre- competitive, de-regulatory 1996 Act to extend the burdens of current Title II regulation to Internet services. 11 Because a primary goal of the 1996 Act (with the clear exception of Section 255) was to diminish regulatory burdens as competition grew, 12 certain U. S. Senators have steadfastly wished to avoid expanding traditional telephone regulation to information services. Along this line, in determining that telecommunications and information services are mutually exclusive, the FCC concluded, in its universal service report, that to subject information services to the broad range of Title II constraints, could seriously curtail the regulatory freedom that the Commission concluded in Computer II was important to the healthy and competitive development of the enhanced- services industry. 13 As held true with respect to the FCC's decision to de-tariff CPE in its Computer II ruling, the FCC's reliance upon Computer II for distinguishing between telecommunications and information services falls apart under an analysis that fosters increased access by individuals with disabilities. In contrast to most sections of the 1996 Act, Section 255 was not intended to reduce regulatory burdens or to foster competition by eliminating regulatory constraints. Rather, Section 255, in the interest of expanding telecommunications access, created new regulatory obligations for service providers. 14 Indeed, the de-regulatory and pro-competitive goals of the actually offering telecommunications services, in that they are creating virtual transmission paths between various points on the public switched telephone network. 17 The FCC’s report explains that “an entity offering a simple, transparent transmission path, without the capability of providing enhanced functionality, offers ‘telecommunications. ’” 18 For many of the services otherwise considered to be information or enhanced services for the general population, access will in fact create only a simple transmission path for people with disabilities. Without Section 255 coverage, there will be no path at all. If these services are excluded, individuals with disabilities will be able to initiate calls, but will not be able to complete those calls, thus defeating the purpose and intent of Section 255 to provide telecommunications access for all Americans. definition of telecommunications services; rather it will be assisted by such a definition, as this will expand the current pool of telecommunications users. 10 In the Matter of Federal- State Joint Board on Universal Service, Report to Congress, FCC 9867, CC Dkt. 96- 45 (April 10, 1998) (Report to Congress). 11 Report to Congress 37 (emphasis in original). 12 Report to Congress 38 (quoting Senators Ashcroft, Ford, John F. Kerry, Abraham, and Wyden). 13 Report to Congress 46. 14 Competition was not at issue in the Legislature’s consideration of Section 255. In any event, however, competition in the telecommunications industry will not be impeded by a broad 13 1996 Act,” 15 to which the Commission repeatedly alludes in its universal service report have no place in Section 255. Other language in the FCC’s universal service report also supports a broad interpretation of telecommunications services under Section 255. First, in that report, the Commission left open the issue of whether protocol processing should be treated as an information service. 16 Second, the Commission left open the issue of whether Internet telephony service providers using the network for phone- to- phone service, are 15 Report to Congress 47. 16 Report to Congress 52. 17 Report to Congress 89- 92. 18 Report to Congress 39. 14 B. The FCC’s Definition of Adjunct- to- Basic Services Dictates Inclusion of Additional “Enhanced” Services for Purposes of Section 255. Even under the FCC’s own definition of adjunct- to- basic services, many of the services otherwise considered to be enhanced or information services for the general population necessarily fall within the scope of Section 255’s coverage for individuals with disabilities. The FCC defines adjunct- to- basic services as services which facilitate the “establishment of a transmission path over which a telephone call may be completed, without altering the fundamental character of the telephone service,”NPRM para. 39, and which “bring[] maximum benefit to the public through its incorporation in the network.”NPRM para. 40. Deaf and hard of hearing people are presently unable to complete telephone calls that use interactive voice responses and audiotext information services, two types of services which the FCC says may not be covered by Section 255. These services are not TTY accessible 19 and relay systems are illequipped to handle their speed. Thus, despite their proliferation throughout educational, recreational, and governmental services across America, deaf and hard of hearing people remain without access to these types of advanced telecommunications services. 20 19 Although a technology does exist to allow an interface between TTYs and interactive telephone systems, this technology has rarely been utilized. 20 Repeated efforts by consumer groups to convince the Department of Justice (DOJ) and the FCC to require access to these automated telephone systems have not been successful. For example, in the course of its rulemaking on Title II of the ADA, the DOJ received many comments about the inability of relay systems to provide access to automated telephone systems using touch tone prompts. Acknowledging that the problem existed, the DOJ nevertheless declined to rule on the matter, concluding “that it is more appropriate for the [FCC] to address these issues in its rulemaking under Title IV. 56 Fed. Reg. 35693, 35712. The FCC, however, has consistently held that these “enhanced” services are merely encouraged, but not required, even if they are technically feasible. In the Matter of Telecommunications Services for Individuals with Hearing and Speech Disabilities, and the Americans with Disabilities Act of 1990, CC Dkt No. 90- 571, Report and Order 20 (July 26, 1991). 15 It cannot be disputed that access to these services would bring “maximum benefit” to deaf and hard of hearing persons wishing to access the network. Indeed, access is needed to bring any benefit to these individuals. With access, calls may be completed; without access, calls are effectively blocked for these populations. Similarly, theNPRM para. states that the Commission has consistently categorized a service option or feature as adjunct- to- basic, and thus subject to Title II regulation if that option or feature is clearly basic in purpose and use.”NPRM para. 40. Again, it cannot be more obvious that access to advanced service features is basic in purpose and use for individuals with disabilities. This holds true for interactive and audiotext telephone services as well as for other services labeled as enhanced, such as voice mail and electronic mail. If the Commission’s test for adjunct services is whether or not “the service provides the information necessary for a subscriber to place a call” (as holds true for directory assistance services and Operator Services for the Deaf) then various services which are considered “enhanced” for other purposes must fall within the FCC’s definition of “adjunct to basic” services for the purposes of Section 255. SeeNPRM para. 40- 41. The test, then, for purposes of Section 255 coverage, should be whether access to a service is needed to achieve communication by people with disabilities, i. e., whether access to a service is needed to achieve the objectives of Section 255. In sum, the Commission should not base its final Section 255 rules on interpretations made in proceedings - such as the Second Computer Inquiry and the Implementation of the NonAccounting Safeguards 21 - which were decided without accessibility in mind. Rather, it should create rules which respond to the objectives of Section 255. Should the Commission exclude all enhanced or information services from Section 255’s coverage, it will effectively be denying to 21 Implementation of the Non- Accounting Safeguards of Sections 271 and 272 of the Communications Act of 1934, as amended, First Report and Order and Further Notice of Proposed Rulemaking, CC Dkt. No. 96- 149, 11 FCC Rcd 21905 (1996). 16 all Americans with disabilities access to the new and innovative telecommunications services that the rest of America is coming to enjoy - hardly a result that could have been contemplated by Section 255. V. Definitions and Other Issues Affecting Scope of Coverage A. Providers of Telecommunications Services The FCC proposes to define providers of telecommunications services as “all entities offering (i. e., whether by sale or by resale) telecommunications services to the public, in addition to the service provider who originates the offering.”NPRM para. 43. We urge that the FCC make clear that subproviders who offer services to providers, who in turn make those services available to the public, are covered under this definition. This would avoid defenses by providers who receive inaccessible services from hiding behind those subproviders. The FCC proposes to apply its rules to a service provider only to the extent that that provider offers telecommunications services, if that provider offers both telecommunications and non- telecommunications services.NPRM para. 46. We support this application of the rules. 17 B. Telecommunications Equipment The FCC has stated that Section 255 requires functional accessibility of all equipment used in the provision of a telecommunications service, whether that equipment is used by an individual (CPE) or found elsewhere in a telecommunications system (telecommunications equipment).NPRM para. 49. Again, we support this principle. The FCC has proposed that Section 255 apply to multi- use equipment only to the extent that the equipment serves a telecommunications function.NPRM para. 53. We support this approach, but urge that the FCC apply this test whether or not the equipment was originally intended for a telecommunications application. Stated otherwise, it is the functionality of the equipment, not the intent of the manufacturer that should determine the equipment’s coverage. Similarly, we support the FCC’s conclusion that CPE covered under Section 255 includes wireless handsets.NPRM para. 49 n. 107. C. Software The FCC has tentatively concluded that software integral to telecommunications equipment is covered by Section 255.NPRM para. 55. As the FCC notes, software provides a means of controlling telecommunications functions. It is for this reason that we disagree with the FCC’s decision to only include software that is bundled with telecommunications products. See NPRM 56. As holds true for all telecommunications equipment, the test should be one of functionality, not whether the software is marketed separately from the CPE. Indeed, it is likely that more and more software will not be bundled in the future, as software may increasingly control CPE functions from distant locations through the network. Moreover, any other standard may invite manufacturers to unbundle software for the sole purpose of avoiding their Section 255 obligations. 18 D. Manufacturers The FCC proposes that Section 255 apply to all manufacturers offering equipment for use in the U. S., regardless of their national affiliation. NPRM 58. We support this application and believe that it is consistent with prior FCC rulings requiring accessible features on imported telephones (i. e., hearing aid compatibility) and imported televisions (i. e., decoder circuitry for closed captioning). The FCC proposes to fix responsibility for product accessibility on the final assembler of the product.NPRM para. 60. We agree that this “would give manufacturers the greatest incentive to specify accessible components from their suppliers, and to negotiate private arrangements for allocating the costs of compliance.” Id. This will also make the point of contact for consumers concerned about lack of access easier to locate. E. Network Features, Functions, or Capabilities The FCC seeks comment on the relationship between the enforcement procedures under Section 251 for interconnection agreements and the Commission’s enforcement authority under Section 255.NPRM para. 66. In comments to the FCC in its interconnection proceeding, the NAD had, in fact, asked the FCC to condition approval of interconnection agreements upon compliance with accessibility standards. 22. The FCC declined to address access issues in its final rule, noting that it would address these questions in a further notice of proposed rulemaking, after the Section 255 rules had been issued. 23 Once again, we reiterate our concerns 22 In the Matter of Implementation of the Local Competition Provisions in the Telecommunications Act of 1996, CC Dkt. No. 96- 98, Reply Comments of the NAD at 6 (May 30, 1996). 23 See Implementation of the Local Competition Provisions in the Telecommunications Act of 1996, CC Dkt. No. 96- 98, First Report and Order, 998, 11 FCC Rcd 15499 (1996). 19 that such agreements not be permitted to go forward if a party to such agreement is not in compliance with Section 255. The FCC also asks how responsibility for compliance with the accessibility and compatibility guidelines should be apportioned between network equipment and service providers that incorporate that equipment into the network.NPRM para. 80. It would seem that this should be dealt with on a case- by- case basis, considering carefully, in each instance, the source of the failure to provide access. Where the source is both, both should be held accountable. F. Disability We support use of the ADA’s definition of disability, as well as the Access Board’s list of categories of common disabilities. SeeNPRM para. 70. VI. Application of the Readily Achievable Standard Should Parallel Application of this Standard Under the ADA, Taking into Consideration Telecommunications- Specific Factors Only. Under Section 255, manufacturers and service providers must make their offerings accessible or compatible if it is readily achievable to do so. As the FCC notes in itsNPRM para., Section 255( a)( 2) provides that “[ t] he term ‘readily achievable’ has the meaning given to it by section 301( 9) of [the ADA].”NPRM para. 94. The FCC’sNPRM para. offers an extensive analysis of the term “readily achievable,” noting that the existence of ADA factors does not appear to “preclude [its] consideration of telecommunications- specific factors not enumerated in the ADA.”NPRM para. 98 n. 198. We agree that the telecommunications context may warrant consideration of certain factors that were not applicable under an ADA analysis of structural accessibility. However, many, if not most of the newly proposed factors now proposed for the Section 255 readily achievable standard are not telecommunications- specific. In fact, many of the new factors suggested could have easily been applied in the ADA context. 20 When Congress incorporated the readily achievable standard in Section 255, it did so fully aware of the long line of agency interpretations, administrative decisions, and court cases that had already applied this standard under the ADA. For the most part, the analyses applied by these various forums compared the costs of providing access with the overall resources of the entities covered by the ADA’s provisions. With a few exceptions, the same test should be applied here. A. Feasibility The FCC offers several reasons why a particular access feature may not be feasible: 1) technical feasibility: i. e., physical impossibility or where technology is not available to develop an access solution; 2) legal impediments; or 3) where implementing features to improve access for one disability might limit access for another.NPRM para. 101. A discussion of each of these factors follows. 1. Technical feasibility The extent to which adding an access feature is technically feasible, or the extent to which technology is available to achieve accessibility, are legitimate considerations in the telecommunications context. First and foremost, however, in permitting this defense, the FCC should insist upon proof of technical infeasibility, rather than unsupported assertions that a technical solution is unavailable. Second, this defense should only be permitted to the extent that technical feasibility could not be achieved during the design and development of the product or service. Indeed, the FCC itself notes the greater difficulties that arise when trying to incorporate accessibility past these early stages. Under its discussion of timing, the FCC acknowledges that “technological features available at the beginning of a product development cycle can be incorporated more easily . . . than those that become available at the end of the development cycle.”NPRM para. 120. A company should not be permitted to assert this “readily achievable 21 defense” if the access problem could have been avoided through incorporation of access features early in the design processes. 2. Legal impediments - While unclear in theNPRM para., it would seem that the FCC’s decision to permit the existence of a legal impediment as a defense to providing access is designed to protect companies that are unable to obtain licenses for access solutions, or where contracts otherwise prevent the incorporation of such solutions. We request that the FCC elaborate on the use of this defense, so that its meaning is fully understood, and so that it is not abused in any way. 24 Additionally, we urge the FCC not to permit this defense unless the company asserting this factor is able to demonstrate that it has undertaken, though unsuccessfully, whatever efforts may have been necessary to eliminate the legal obstacles impeding access. 3. Impeding other types of accessibility - Consumers with disabilities most certainly have an interest in not curtailing one type of access for another. Nevertheless, this concern, although legitimate, would be more appropriately considered elsewhere in the FCC’s rules, as it is separate and apart from the extent to which it is readily achievable to make a product or service accessible. B. Expense We agree that it is reasonable to consider any tangible and actual costs that must be incurred in achieving accessibility. SeeNPRM para. 103- 104. The costs of engineering staff, fabrication facilities, and licensing fees are examples of costs that companies may incur in achieving access, and which legitimately may be considered in a readily achievable analysis. 24 For example, contracts specifically designed to avoid Section 255 compliance should not be tolerated. 22 We disagree, however, that companies should be able to consider “opportunity costs,” loosely defined by the FCC as the costs associated with decreasing access with respect to another disability, or otherwise reducing product or service performance in another way. These “costs” are highly subjective. Without clearly defined and objective measures for determining these costs, consumers are left at the mercy of companies who, on their own, may determine that the “opportunity costs” for achieving a certain type of access are prohibitive. Similarly, we oppose consideration of the additional income that an access feature will provide in a readily achievable analysis. Although we understand the FCC’s well- intended objective to have companies consider the additional income they will bring in as the result of adding access, in fact this factor may result in providing companies with an added excuse not to incorporate access, where it is expected that such access is not likely to bring in much income. This might occur, for example, where the market of individuals with disabilities is small, as may be true for products or services designed for individuals with multiple disabilities, such as deafblindness. Although the ADA permits consideration of a wide variety of expenses, no cases or agency interpretations to date have used opportunity costs or projected income as permissible factors in a readily achievable determination. 25 Nor has the FCC justified the need for consideration of this factor in the telecommunications context only. C. Practicality Under the Section 255 readily achievable standard, the FCC proposes to allow consideration of whether an access feature is practical, given the expenses involved.NPRM para. 106. Here, the FCC lists a number of factors: 25 Nondiscrimination on the basis of disability by public accommodations and in commercial facilities. 56 Fed. Reg. 35543, 35594 (July 26, 1991); 28 C. F. R. Part 36.104; see also discussion of court cases on readily achievable below. 23 1. Resources - A provider should be permitted to consider its resources, including, but not limited to, its financial resources, staff resources, and the facilities that it has available to meet the expenses associated with accessibility. SeeNPRM para. 106. The FCC proposes to establish “a presumption that the resources reasonably available to achieve accessibility are those of the entity . . . legally responsible for the equipment or service that is subject to the requirements of Section 255.”NPRM para. 109. It goes on to state that this presumption may be rebutted where either the assets and revenues of a parent or affiliate are available to the provider (and may thus be taken into consideration) or where a respondent may show that a sub- unit does not have access to the full resources of the legally bound corporation. We support the FCC’s analysis on these points, as it is consistent with that of the Department of Justice under the ADA, 26 and case law interpreting the ADA. For example, in Arnold v. United Artists Theater Circuit Inc. (United Artists), plaintiffs had challenged conditions at several movie theater locations all owned by the same corporate defendant, United Artists. The court concluded that whether a proposed change is deemed “readily achievable” under the ADA depends on the defendant firm’s “overall financial resources.” 42 U. S. C. 12181( 9)( b)[ B]; 28 C. F. R. 36.104. For multi- site companies such as UA, the ADA expressly requires that defendant assess the financial condition, not just of the sites involved, but of the entire corporation. 27 2. Market Considerations The FCC proposes to allow companies to consider the potential market for the more accessible product, and the extent to which the more accessible product could compete with other offerings in terms of price and features.NPRM para. 115. While obviously not intended to do 26 56 Fed. Reg. at 35553- 54. The Department of Justice’s analysis explained that “in some instances, resources beyond those of the local facility where the barrier must be removed may be relevant in determining whether an action is readily achievable,” and that the resources of the parent corporation should be considered to the extent those resources may be allocated to the local facility. Id. 27 7 ADD 1165, 1187 (1994), citing 42 U. S. C. 12181( 9)( C); 28 C. F. R. 36.104. 24 so, consideration of this “market” factor may well defeat the entire purpose of Section 255. Long ago - indeed in its very first piece of federal legislation expanding telecommunications access for individuals with hearing disabilities, the Telecommunications for the Disabled Act of 1982 - Congress acknowledged the problems of relying on competition in the marketplace as a means of achieving accessibility. As noted above, the 1982 Act was designed to permit continued cross- subsidization of specialized telephone equipment with service revenues, notwithstanding the FCC’s Computer II prohibition against such subsidies. Congress explained that reliance on market forces to keep the costs of such equipment down would not work for individuals with disabilities: For most ratepayers, deregulation may indeed ensure a competitive market in telephone sets and eliminate subsidies for such sets from local rates. For the disabled, however, the ban on cross- subsidization could mean unregulated price increases on the costly devices that are necessary for them to have access to the telephone network. Disabled persons who are unable to afford the full costs of this equipment will lose access to telephone service. 28 Indeed, the very reason that Section 255 - as well as the ADA and other disability laws have been needed at all has been that the marketplace has not responded to the needs of individuals with disabilities. To now suggest that manufacturers may not be required to create accessible products where such products are not likely to receive a great reception in the market negates the whole purpose of Section 255. Moreover, the FCC’s proposal to permit consideration of the extent to which an accessible product can compete with other, inaccessible products simply sanctions the sale of inaccessible products that are more likely to bring in a greater share of the market. The FCC should remember that even if this market factor is eliminated, there will be no competitive disadvantage for companies complying with Section 255. Because the law is evenly 28 H. Rep. No. 97- 888, 97 th Cong. 2d Sess. 3- 4 (1992). 25 applied across the marketplace, it will affect all companies similarly. Rather, a balancing of the costs of providing access with the resources available to the covered entity will protect companies whose resources are unable to handle accessibility expenses. On a related matter, the FCC has raised concerns about an Access Board guideline which states that no change in a product shall be undertaken that has the effect of decreasing the accessibility, usability, or compatibility of telecommunications equipment or CPE. 29 Specifically, the FCC seeks to ensure that this principle not operate “to prevent legitimate feature trade- offs as products evolve, nor should it stand in the way of technological advances.”NPRM para. 114. The FCC’s statement appears to assume that disability access will stand in the way of technological advances. This, of course, is an incorrect premise, as we have, on several occasions, shown that accessibility features can enhance the desirability of a product or service. We are concerned with the FCC’s position for another reason. The needs of individuals with disabilities have, more often than not, been afforded second class status. Although individuals with disabilities certainly do not wish to stifle innovation and technological advances for the general population, nor do we wish to take steps backwards as these advances are made. At a minimum, then, the NAD urges the Commission to adopt a rule requiring that access functions already incorporated into products and services not be lost as these offerings are upgraded. Stated otherwise, where products and services are changed or improved, the means of providing access for a particular disability may need to change as well, but under no circumstances should individuals who once had access to a particular offering lose access altogether. To do otherwise would directly contravene the very objective of Section 255, to increase, not decrease, accessibility for individuals with disabilities. 3. Cost Recovery 29NPRM para. 114, citing to 36 C. F. R. 1193.39( a). 26 The FCC has proposed yet a third factor - cost recovery - under the concept of “practicality.” This is defined as the extent to which an equipment manufacturer or service provider is likely to recover the costs of increased accessibility.NPRM para. 115. This factor is troubling, as it permits a company to consider whether it expects to recover the incremental cost of the accessibility feature, and the extent to which absorbing the cost would provide a disincentive to offering the product. Put simply, these are considerations which are quite foreign to the concept of readily achievable as applied under the ADA, and which are likely to provide a significant escape route for covered entities seeking to avoid their Section 255 obligations. It is critical to note here that the Department of Justice expressly rejected a similar consideration in its application of the readily achievable standard to entities covered under the ADA. In the preamble to its final rules implementing Title III of the ADA for places of public accommodation, DOJ explained that it had originally proposed a rule which would have stated that “barrier removal is not readily achievable if it would result in significant loss of profit or significant loss of efficiency of operation.” 30 DOJ deleted this section from its final rules, explaining that “[ m] any commenters objected to this provision because it impermissibly introduced the notion of profit into a statutory standard that did not include it.” 31 Having patterned Section 255’s readily achievable language on application of this standard under the ADA, Congress similarly could not have intended cost recovery or profit to be included as a factor for consideration by the FCC. There is nothing unique to telecommunications that warrants inclusion of this factor at this time. An example will demonstrate this point. Under Title III of the ADA, stadiums must be accessible to individuals with disabilities. Under the FCC’s analysis, the owners of a stadium in a small town that has only a few citizens 30 56 Fed. Reg. at 35569, citing proposed rule 28 C. F. R. 36.304( f)( 1). 31 Id. 27 who use wheelchairs would be able to argue that they should not be required to provide accessible seating because they may not be able to recover the costs of providing such access. Under an ADA analysis, however, so long as these owners have resources available to provide such access - whether on their own or through a lucrative parent corporation - they would be required to provide the accessible seating. The owners of the stadium would not be permitted to consider the likelihood of recovering their costs, and the disabled citizens of and visitors to the town would gain much needed access to the stadium. The analysis that we put forth today is substantiated by federal courts that have interpreted the readily achievable test. In Pinnock v. International House of Pancakes (Pinnock), for example, the court deferred to the specific factors enumerated in the ADA itself and the analysis set forth by the DOJ in weighing the financial resources and economic strength of the defendant with the costs of the requested accommodations. 32 There, the court determined that requiring the owner of a restaurant to make its restroom accessible to persons in wheelchairs did not constitute a taking of private property without just compensation. Similarly, in Slaby v. Berkshire, a case involving barriers to a golf course, the court explained that the readily achievable standard “balances the cost of construction and ability of the business to pay against the need of the disabled persons at the facility.” 33 Although the respondent in Slaby prevailed because it had already taken reasonable measures to provide accessibility, the ability of the country club housing the golf course to recover its costs simply was not at issue. See also Neff v. American Dairy Queen Corp., 34 (scope of injunctive relief if ADA violation is proven would depend in part on the financial strength of the defendant); United Artists (court emphasized the 32 3 ADD 482, 491, 844 F. Supp. 574 (1993). 33 928 F. Supp. 613 (1996) 34 58 F. 3d. 1063 (5 th Cir. 1995) 28 availability of the defendant corporation’s resources in certifying plaintiffs’ class action against the movie theater chain). 29 4. Timing The FCC notes that because access features available at the beginning of a product development cycle can be incorporated more easily than those available at the end of a cycle, a company should be permitted to consider the periods of time needed to incorporate new access solutions in products under development.NPRM para. 120. While we generally agree with this approach, it is important for the FCC to recognize, and for covered entities to be reminded, that the Access Board guidelines direct manufacturers to evaluate accessibility, usability, and compatibility “throughout product design, development, and fabrication. . .” 35 There may, in fact, be times where, although it had not been technically feasible to include access during the design stage of a product or service, a readily achievable technical solution is located later on in the development of the product. In this instance, the company, under the readily achievable analysis, should be required to incorporate access if its resources can handle it. In other words, although a company would be wise to search for access solutions as early as possible in the design process, the company should not be permitted to end that search prematurely; rather, efforts should continue throughout the design, development, and fabrication of the product or service. It may, however, be permissible for a company to assert, as a timing defense, that incorporation of an access feature (i. e., late in the production process) would result in an extensive delay in the release of the product or service on the market, (i) if such a delay would actually ensue, and (ii) if that delay could not have been prevented by earlier consideration of access needs. The FCC has tentatively concluded that once a product is introduced on the market without accessibility features that were not readily achievable, Section 255 does not require subsequent modification of the product.NPRM para. 120. In a related vein, however, the Access 35 36 C. F. R. 1193.23( a). 30 Board guidelines apply to both new products and “existing products which undergo substantial change or upgrade, or for which new releases are distributed.” 36 This guideline, originally offered as a TAAC recommendation, is intended to apply to changes that affect the functionality of the product, rather than cosmetic or minor changes. Such a provision is critical. It is needed to ensure that where modifications to products are substantial, efforts to incorporate access will be undertaken. We urge its inclusion in the FCC’s final rules. Finally, the FCC has concluded that a grace period for compliance with Section 255 is not warranted. ( 121) We strongly support this conclusion, given the considerable amount of time that has already passed since enactment of this section. D. Other Considerations We agree with the FCC that readily achievable determinations should be made on a caseby- case basis.NPRM para. 122. Indeed, at least one court has rejected any type of numerical formula for a readily achievable analysis. In Pinnock, the court cited to the DOJ language on this point: The Department has declined to establish in the final rule any kind of numerical formula for determining whether an action is readily achievable. It would be difficult to devise a specific ceiling on compliance costs that would take into account the vast diversity of enterprises covered by the ADA’s public accommodation requirements and the economic situation that any particular entity would find itself in at any moment. 37 Because the covered entities under Section 255 are similarly diverse, a single numerical test would make little sense under Section 255. In conclusion, the readily achievable test should remain one that, for the most part, compares the costs of providing access with the overall resources available to the covered entity 36 36 C. F. R. 1193.2. 37 3 ADD at 491, citing 28 C. F. R. 36.104, App. B, at 577. 31 on a case- by- case basis, taking into account any technological or legal barriers to achieving such access. To rule otherwise would be to contravene the intent of Congress which, when it adopted the readily achievable standard, believed that it had patterned that standard after its application under the ADA. VII. Modifications to the Complaint Resolution Process Are Necessary to Ensure the Efficient and Effective Enforcement of Section 255. A. Fast Track Because the Commission intends to rely on consumer complaints as one of its primary means of monitoring and enforcing compliance with the Section 255 requirements, accessible and efficient complaint procedures are necessary to ensure that all Americans gain the benefits of advances in telecommunications services and equipment. Toward this end, the Commission proposes that its involvement in the enforcement process begin with a “fast track.”NPRM para. 126- 143. The “fast track” complaint procedure, if implemented correctly, could significantly aid consumers, manufacturers and service providers in addressing accessibility problems swiftly and easily, thereby helping to ensure access to telecommunications services and equipment for persons with disabilities. The NAD agrees with the Commission that it should handle complaints in a “streamlined, consumer- friendly manner, with an eye toward solving problems quickly,”NPRM para. 3, and offers the following suggestions to assure the success of a fast track process. First, the NAD supports the Commission’s proposal to encourage, but not require, consumers to directly contact a manufacturer or service provider before submitting a complaint to the FCC.NPRM para. 128. By directly contacting the manufacturer or service provider, the consumer may be able to resolve the problem quickly and easily, without involving the Commission. However, to be able to do this, consumers must know whom to contact and how. Manufacturers and service providers should be required to designate representatives to handle 32 Section 255 complaints. 38 Depending on the size of the company and the array of products and services offered, manufacturers and service providers may want to designate a single contact point for the company or designate different contact points for different product offerings. The Commission should make the names and methods for contacting these representatives available to the public, either through the FCC or through the manufacturers and service providers themselves, and should make the submission of such data mandatory. SeeNPRM para. 134. Without this list, consumers will be without information vital to the informal resolution of many complaints that need not reach the FCC. Similarly, we agree with the Commission that equipment manufacturers and service providers should be required to establish multiple contact methods, accessible to as many disabilities as possible.NPRM para. 133. We also support the Commission’s proposal to establish a central FCC contact point for all Section 255 inquiries and complaints.NPRM para. 130. A central contact point is critical to enable consumers to register their complaints and obtain information about accessibility issues. The Commission should take measures to ensure that people with disabilities are aware of the FCC’s central contact point through its webpage and other outreach efforts. Additionally, consumer groups stand ready to assist in distributing information about this contact point to people with disabilities through our newsletters and Internet sites. It is critical for the Commission set up a comprehensive training program for staff members assigned to handle Section 255 complaints and inquiries. The legal and technological 38 See generally 132- 33, proposing accessible contact points for manufacturers and service providers. Designating a specific representative is similar to the broadcasters’ “children’s liaison,” a designated individual at each television station responsible for handling inquires and complaints regarding compliance with children’s programming requirements. The name and method of contacting the children’s liaison must be made available to the public. 47 C. F. R. § 73.3526( a)( 8)( iii); See Policies and Rules Concerning Children’s Television Programming; Revision of Programming Policies for Television Broadcast Stations, Report and Order, MM Docket No. 93- 48, August 8, 1996, 11 FCC Rcd 10660, 10690. 33 issues concerning Section 255 can be complex; having a knowledgeable staff, familiar with Section 255 and accessibility issues in general, is vital to the successful enforcement of Section 255. Additionally, FCC staff appointed to receive complaints should have the means of keeping records of such complaints, so that patterns and practices of noncompliance are brought to the Commission’s attention. Keeping consumers informed and involved is of primary importance throughout the complaint resolution process. The Commission should notify consumers when it has referred their complaints to manufacturers or service providers. SeeNPRM para. 133. Included with this notification should be information on the time allotted for a response by the manufacturer or service provider, the FCC’s evaluation procedure, and options available to the consumer if the problem cannot be resolved through the “fast track” process. SeeNPRM para. 142. Where the FCC determines that a complaint is outside the scope of Section 255, it should also inform consumers about avenues of redress that may be available elsewhere. Id. The Commission should require manufacturers and service providers to submit a report to the FCC responding to the complaint, with copies to the complaining party, explaining whether it has provided access, and if not, why not. 139. A report will be necessary for the complainant to decide whether the manufacturer or service provider has addressed the accessibility problem satisfactorily and whether to pursue the second phase of complaint resolution. Because the consumer may need this report during the second phase, we oppose the Commission’s suggestion that respondents be able to submit their reports via telephone call.NPRM para. 138. The respondent’s report should be in a permanent format, whether that is via electronic mail, facsimile, written correspondence, or other format accessible to the complainant. The Commission has proposed a five- day response period for the “fast track” procedure.NPRM para. 136. If manufacturers and service providers keep accurate records regarding their 34 efforts for ensuring product and service accessibility, they should not need a great deal of time to respond to consumer complaints. However, given the likely complexity of many Section 255 complaints, the period proposed by the Commission may not provide manufacturers and service providers adequate time to evaluate and address accessibility problems. The result is likely to be endless requests for extension of time, which would defeat the purposes of Section 255. Accordingly, the NAD proposes that the Commission allow ten working days for manufacturers and service providers to briefly respond to consumer complaints, with an outside limit of thirty calendar days for this “fast track” period if extensions are requested. SeeNPRM para. 137. If a complaint cannot be resolved within thirty days, it should move on to the second phase of dispute resolution. We support the decision by the FCC to close the matter only if (i) the access problem is resolved or (ii) there is no underlying compliance problem, in which case the matter will go to the second phase of dispute resolution processes, where the FCC can determine the “nature and magnitude of problem, and take appropriate action.”NPRM para. 140. This will provide a much needed safeguard for consumers, and will reveal patterns of noncompliance. The NAD wishes to note as well that we believe that the following features of the FCC’s fast track phase will work toward achieving a streamlined, consumer- friendly complaint process: · Allowing persons with disabilities to submit complaints by any accessible possible means,NPRM para. 129; · Allowing complaints to be brought without any time limitNPRM para., 149; · Distribution of an FCC sample complaint form that is not otherwise required by the FCC,NPRM para. 131; · The willingness of the FCC to initiate discussions with consumer or industry access experts and the Access Board, for the purpose of reviewing specific complaints and access questions,NPRM para. 141, 161; · Requiring that Section 255 complaints need only be submitted once, with no requirement for re- filing at the end of the informal process as a condition for moving to formal dispute resolution,NPRM para. 154; 35 · Permitting the joinder of respondents. This is especially important, since there may be situations where a complaint will be brought against both a service provider and a manufacturer for the same violation,NPRM para. 154; and · Permitting the joinder of complaints, and complaints involving different accessibility aspects of the same products,NPRM para. 154. B. Informal and Formal Complaints As a consumer complaint moves to the second phase for either informal or formal resolution, the FCC needs to continue to establish time limits for the complaint’s resolution. Toward this end, the NAD strongly urges the Commission to apply the five- month deadline established under Section 208 of the Communications Act.NPRM para. 156 39 The Conference Report for the Telecommunications Act of 1996 explained that “the remedies available under the Communications Act, including the provisions of sections 207 and 208, are available to enforce compliance with the provisions of section 255.” 40 Insofar as Section 208 is directly applicable to the enforcement of Section 255, it follows that the five- month time period should also apply to Section 255 complaints. Even were the Commission to conclude that Section 208 does not apply to all Section 255 complaints, it should nevertheless issue a rule that requires it to resolve Section 255 complaints within five months, following the guidance that Section 208 provides. By recently tightening the time for the resolution of Section 208 complaints from twelve to five months and eliminating extensions in complex cases, Congress has made clear its interest in achieving swift adjudication at the FCC. Additionally, as the Commission itself has recognized, “accessibility delayed is accessibility denied,”NPRM para. 124, and an outer time limit for the resolution of 39 See 47 U. S. C. § 208( b)( 1). 40 S. 652, Conf. Rep., 104- 230, 104th Cong., 2d Session 135 (1996). 36 accessibility complaints by the FCC is necessary to ensure that persons with disabilities can enjoy the benefits of advances in telecommunications services and equipment. The FCC states that it will establish formal adjudicatory procedures only where the complainant requests those procedures, and where the Commission, “in its discretion, permits the complainant to invoke [those] procedures.” NPRM 147. The NAD is gravely concerned about the Commission’s tentative decision to condition formal complaints upon FCC approval. In its Notice of Inquiry on Section 255, the Commission made clear “that Congress has established in Section 255 the right of aggrieved parties to file complaints against any person who has allegedly violated Section 255.” 41 However, in itNPRM para., the Commission proposes to undermine that right without any justification. This appears to be both unprecedented and discriminatory against individuals with disabilities. 42 Section 255 already removes the private right of action from consumers. Insofar as the Commission has exclusive jurisdiction over enforcement, removing the automatic right to bring a formal FCC complaint raises serious concerns regarding the denial of due process for individuals with disabilities. Where consumers do file formal complaints under Section 255, we agree with the FCC that they should not be made to pay a filing fee.NPRM para. 155. The Commission notes that it is required to impose a filing fee for formal complaints directed at common carriers, but may waive the fee if doing so would be in the public interest. 43 The fee, currently $150.00, 44 may in fact 41 Implementation of Section 255 of the Telecommunications Act of 1996; Access to Telecommunications Services, Telecommunications Equipment, and Customer Premises Equipment By Persons with Disabilities, Notice of Inquiry, WT Docket No. 96- 198 (September 17, 1996) ¶36. 42 For example, no similar requirement for FCC approval exists with respect to formal complaints brought against common carriers under Section 208. 47 C. F. R. 1.720- 1.735. 43NPRM para. 155 n. 276, citing Section 8( g) of the Communications Act, 47 U. S. C. §158( g). 44 47 C. F. R. §1.1105. 37 discourage consumers from filing formal complaints; this in turn could undermine enforcement of the accessibility mandates. Thus, it is in the public interest for the Commission to waive the filing fee and we urge the Commission to take such action. 38 C. Alternative Dispute Resolution After a complainant has initiated an informal or formal complaint, the complainant should reserve the right to request alternative dispute resolution at any time.NPRM para. 159. As the Commission is aware, the use of alternative dispute resolution may bring the matter to a more rapid conclusion without burdening the resources of the parties or the Commission. Certain safeguards will be needed to ensure fairness and accessibility during the alternative dispute resolution process. First, the Commission should establish guidelines, if none yet exist, for selecting neutral parties who are able to oversee the process. Second, the Commission must ensure that the alternative dispute resolution process is accessible to all parties. Already mandated under the Rehabilitation Act, this will require the provision of auxiliary aid and services, including, but not limited to, interpreters, computer- assisted real- time transcription services, and the provision of materials in alternative formats, where necessary. We encourage the use of outside experts such as the Association of Accessibility Engineering Specialists to help speed the resolution of complaints in the alternative dispute resolution stage. VIII. The Full Range of Commission Remedies are Available under Section 255 We agree with the FCC that the Commission’s full range of remedies, including those which exist pursuant to Sections 207 and 208, Section 312, and Section 503, should be available for Section 255 violations.NPRM para. 172. The FCC asks whether damages which may be awarded against common carriers under Sections 207 and 208 may also be available to other entities under Section 255.NPRM para. 33. The Conference Report to Section 255 made clear that the “remedies available under the Communications Act, including the provisions of sections 207 and 208, are available to enforce compliance with the provisions of section 255.” 45 Insofar as manufacturers of 45 Conf. Rep. No. 104- 230, 104th Cong., 2d Sess. 21- 22, 135 (1996) 39 telecommunications equipment and providers of telecommunications services are treated uniformly throughout Section 255 for all other purposes, there is no reason to draw a distinction between these covered entities with respect to remedies available for their noncompliance. Had Congress intended otherwise, it would have drawn such a distinction. Thus, we urge the FCC to clarify that the monetary damages available under Sections 207 and 208 are equally available against all entities covered under Section 255. The FCC also seeks comment on whether it has a basis to order a product to be retrofitted if the product had been developed without access, where access would have been readily achievable.NPRM para. 172. So long as it would have been readily achievable to incorporate access into a product or a service during its design, development, or fabrication, the FCC has a basis to require that such access be incorporated at a later date, even if this will require some retrofitting. To rule otherwise would be to ignore the intent of Section 255’s basic objective to expand accessibility. Companies that are forced to retrofit will soon realize - as will their competitors -the importance of considering and incorporating access at the outset of design and development. Finally, the NAD supports use of the following measures suggested by the FCC to foster increased telecommunications accessibility (NPRM 174): · establishment of a clearinghouse for product accessibility information and solutions; · publication of information on manufacturer and service provider accessibility performance; · additional information on the Internet at the FCC’s Disabilities Issues Task Force Web site; · establishment, by consumer and industry groups, of informational and educational programs, product and service certification, and standards setting; and · development of peer review processes. VIX. Conclusion 40 We wish to thank the Commission for the opportunity to submit these comments and for its commitment to ensuring access to telecommunications products and services. In order to fulfill that commitment, we urge the Commission adopt the changes and modifications proposed herein. Respectfully submitted, Karen Peltz Strauss Legal Counsel for Telecommunications Policy National Association of the Deaf 814 Thayer Avenue Silver Spring, MD 20910- 4500 (301) 587- 1788 Voice (301) 587- 1789 TTY Of Counsel: Lori Dolqueist Institute for Public Representation Georgetown University Law Center 600 New Jersey Avenue Washington, D. C. 20001- 2022 (202) 662- 9535 June 30, 1998 1 We support the Commission's decision not to rely on either policy statements or consumer complaints as the sole means of enforcing Section 255. As a practical matter, reliance on policy statements will not achieve Congress’ goal of securing universal telecommunications access for persons with disabilities, and consumers with disabilities do not have the resources to effectively file complaints for all inaccessible products and services. 2 We do not oppose the FCC’s suggestion that Section 255 reach only those aspects of accessibility over which equipment manufacturers and service providers subject to FCC 3 The Commission does state that its evaluation of whether a company has met its accessibility obligations must include not only an individual’s use of the equipment itself, but also access to support services, including direct TTY access to customer service and help desk lines, and the use of captioning and video description on tutorial videos. NPRM para. 75- 76. Again, however, it is not clear whether the FCC is proposing these as requirements, or as options for the covered entity, the provision of which will be looked upon favorably if a complaint is brought. 4 S. Rep. No. 104- 23, 104 th Cong, 1st Sess. 52 (1995) (emphasis added). 5 See e. g., Title IV of the Americans with Disabilities Act, Pub. L. No. 101- 336, codified at 42 U. S. C. 12101 et. seq. (1990) (requiring nationwide telecommunications relay services); Hearing Aid Compatibility Act of 1988, Pub. L. No. 100- 394, codified at 47 U. S. C. 610 (1988) (requiring telephones manufactured or imported into the United States to be hearing aid compatible); and Telecommunications Accessibility Enhancement Act of 1988, Pub. L. No. 100- 542, codified at 40 U. S. C. 762 (1988) (expanding, inter alia, the federal relay service). 6 616 F. 2d 1268, 1275 (5 th Cir. 1980), rehearing granted in part on other grounds, 636 F. 2d 942 (5 th Cir. 1981). 7 473 F. 2d 749, 751 (5 th Cir. 1973) 8 Pub. L. No. 97- 410, codified as amended at 47 U. S. C. 610 (1988)