Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D. C. 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 UNITED STATES TELEPHONE ASSOCIATION

Its Attorneys
William F. Maher, Jr.
Halprin, Temple, Goodman & Sugrue
1100 New York Avenue, N. W.
Washington, D .C. 20005
(202) 371- 9100

Of Counsel June 30, 1998
Lawrence E. Sarjeant
Linda Kent
Keith Townsend
U . S. Telephone Association
1401 H Street, N. W. Suite 600
Washington, D .C  20005
(202) 326- 7249

SUMMARY

USTA and its members recognize the importance, to customers with
disabilities and to all Americans, of successfully implementing section 255.
USTA looks forward to working with the Commission and people with
disabilities to realize the Act’s vision of accessible telecommunications
for those with disabilities. To meet this objective in a timely and cost-
effective manner, the Commission’s procedures should encourage joint
problem- solving by telecommunications service providers, manufacturers, and
consumers, without raising unrealistic and counterproductive expectations by
any party.

The rules adopted in this proceeding should ensure regulatory parity between
service providers and manufacturers. Regulatory parity for incumbent LECs is
especially important because they, not manufacturers or even other service
providers, are usually a customer’s first point of contact when an
accessibility issue arises regarding telecommunications service. Thus,
service providers, including incumbent LECs, should be responsible under
section 255 only for those aspects of accessibility over which they have
direct control.

By its terms, section 255 applies only to manufacturers and providers of
telecommunications services, not to providers of information services.
Despite the limitations of section 255, many incumbent LECs have gone far
beyond the scope of section 255 in providing to customers with disabilities
a wide variety of advanced services.

The Commission’s analysis of what is “readily achievable” in the context of
section 255 must reflect the realities faced by incumbent LECs as well as
other providers of telecommunications services. USTA agrees with the
Commission’s tentative conclusion that “readily achievable” in the
telecommunications context simply means “easily accomplishable and able to
be carried out without much difficulty or expense. ”

The substantive standards that the Commission uses to determine whether an
access solution is “readily achievable” should be based on the unique
characteristics of the telecommunications industry. In particular, as the
Commission implements and applies section 255 for service providers, it
should be mindful of the constraints imposed by other Commission or state
regulations on incumbent LECs.

In analyzing the “readily achievable” standard, USTA agrees with the
Commission that there are a variety of reasons why a particular feature may
not be feasible. By designing products to be as broadly accessible as
possible to users, including people with disabilities, manufacturers and
service providers can reduce expense while providing for accessibility. In
considering expense, the Commission should avoid requiring incumbent LECs to
implement accessibility features for which they cannot recover the costs.

When assessing the practicality of accessibility features, the Commission
must recognize that existing regulation of incumbent LECs may limit the
practicality of incumbent LECs making some types of advanced services
available to customers, including some customers with disabilities. The
Commission should not adopt the presumptions presented in the Notice
regarding the business entities whose resources are deemed available to
achieve accessibility consistent with section 255. Determining whether
resources are available for any given accessibility feature is only one of
many factual issues that are relevant to whether a proposed feature is
“easily accomplished. ” The Commission should simply acknowledge the fact-
based nature of this inquiry.

USTA agrees that the Commission should adopt a minimal set of procedural
rules and guidelines to assist compliance with section 255. USTA therefore
agrees with the Commission’s proposal to refer all consumer complaints
initially to the manufacturer or service provider. Moreover, only customers
of a service provider or manufacturer, either directly or through an
authorized representative, should have standing to initiate a fast- track
inquiry or an informal or formal complaint under section 255.

USTA’s members are wholeheartedly committed to resolving accessibility
issues as quickly as possible. Rapid resolution of these issues will enable
incumbent LECs to provide high- quality telecommunications service to their
customers with disabilities, to the benefit of all. But for many such
issues, substantially more than five business days are needed for a
meaningful response. Fifteen days is a minimal reasonable time for a
response, and USTA recommends that the Commission adopt an option to extend
the response period to thirty days, if necessary.

Because of the complexity of section 255 issues, USTA supports the proposed
increases in time for respondents to answer informal complaints and for
replies to answers. At the same time, the Commission should exercise great
care when it uses information from section 255 processes to formulate
policies, identify problems, assign responsibility and fashion remedies.

USTA and its members seek to implement section 255 successfully and to
ensure more broadly that people with disabilities have access to services
that permit them to communicate freely and effectively.

TABLE OF CONTENTS

SUMMARY
I. INTRODUCTION

II. COMMISSION REGULATIONS SHOULD ENSURE REGULATORY PARITY BETWEEN SERVICE
PROVIDERS AND MANUFACTURERS

III. THE PLAIN LANGUAGE OF SECTION 255 LIMITS ITS APPLICABILITY TO
TELECOMMUNICATIONS SERVICES

IV. THE DEFINITION OF “READILY ACHIEVABLE” MUST BE REALISTIC

V. IMPLEMENTATION REGULATIONS SHOULD FOCUS ON FLEXIBLE PROBLEM SOLVING, NOT
AN ADVERSARIAL PROCESS

A.Commission Regulations Should Promote Accessibility
Solutions

C. Only Customers Or Their Representatives Should Have Standing To
File Section 255 Complaints

The Proposed Fast- Track Process Would Hinder The Constructive Resolution Of
Accessibility Issues

D. Procedures For Informal And Formal Complaints Should Address The
Complexity Of Section 255 Issues

E. The Commission Should Exercise Care In Using And Releasing Data Collected
In Section 255 Proceedings

VI. CONCLUSION

Before the FEDERAL COMMUNICATIONS COMMISSION

Washington, D. C. 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 UNITED STATES TELEPHONE ASSOCIATION

I. INTRODUCTION

The United States Telephone Association (“ USTA”) respectfully submits these
comments on the above- captioned notice of proposed rulemaking (the
“Notice”) concerning implementation of section 255 of the Communications Act
of 1934 (the “Act”). [1] USTA and its members welcome the opportunity to
comment on the important issues concerning the accessibility of the public
switched network to customers with disabilities. USTA’s members include more
than 1200 incumbent local exchange carriers (“ LECs”). USTA’s members
provide telecommunications service on a daily basis to customers with
disabilities.

USTA and its members fully recognize the importance of this proceeding to
their customers with disabilities and to all Americans. USTA strongly
supports the goals of section 255. USTA and its members look forward to
working with the Commission and people with disabilities to realize the
Act’s vision of accessible telecommunications for those with disabilities.
Long before the adoption of section 255 in 1996, USTA’s members sought to
meet the needs of their customers with disabilities. In today’s diverse and
competitive telecommunications environment, all participants must continue
such efforts.

The overriding objective of section 255 is to increase access to
telecommunications equipment and services by those with disabilities.[ 2] To
meet this objective in a timely and cost- effective manner, the Commission
should adopt practical procedures that will encourage joint problem- solving
by telecommunications service providers, manufacturers, and consumers,
without raising unrealistic and counterproductive expectations by any party.
However, several aspects of the Notice, including the proposed five business
day “fast- track” process, would raise such expectations and hinder the
resolution of accessibility issues.

The Commission’s processes should support its role as a facilitator of
access solutions, not as a referee of disputes or a policeman of putative
violations of section 255. The Commission thus should seek to avoid becoming
bogged down in the adjudication of thousands of individual complaints. To
address complaints filed by consumers with disabilities, the Commission
should implement a process that will serve as a vehicle for identifying
broad- based problems and concerns whose resolution will produce benefits
for significant segments of telecommunications users with disabilities.
Doing so will result in the most efficient use of the Commission’s limited
resources and will ensure that the Commission focus on issues and problems
that have broad impacts.

II. COMMISSION REGULATIONS SHOULD ENSURE REGULATORY PARITY BETWEEN SERVICE
PROVIDERS AND MANUFACTURERS

The rules adopted in this proceeding should provide for regulatory parity
between service providers and manufacturers. The Commission has stated that
a major purpose of this proceeding is to “develop a coordinated approach to
accessibility for both services and equipment. ‘13/ The Commission should
impose no greater burdens on service providers, and particularly incumbent
LECs, than it does on manufacturers. [3]

Regulatory parity for incumbent LECs is especially important because they
are usually a customer’s first point of contact when an accessibility issue
arises regarding telecommunications service. Yet incumbent LECs’ ability to
resolve accessibility issues independently may be extremely limited.

USTA thus agrees with the Commission that service providers, such as
incumbent LECs, should be responsible under section 255 only for those
aspects of accessibility over which they have direct control.[4] In some
cases, application of this standard is clear. For example, an incumbent LEC
should not be held responsible for resolving accessibility issues regarding
equipment, like CPE, over which the LEC has no control. [5]

However, actual application of the “direct control” standard often will
involve an inquiry into the capabilities of multiple parties. In particular,
joint action by service providers and manufacturers may be necessary to
effect some accessibility solutions. [6] Any such joint action will be
complex, since, for example, service providers and manufacturers will have
to make independent assessments of what accessibility alternatives are
“readily achievable. ” In such cases, close coordination between service
providers and manufacturers will be especially important.

When accessibility issues can be resolved only through changes to equipment
in LECs’ networks, the equipment manufacturer often is the only party that
is technically or contractually qualified to make the necessary equipment
changes. Thus, for this purpose, the manufacturer is the party “in direct
control” of the equipment at issue, and the Commission’s rules should hold
the manufacturer responsible for making the needed equipment changes. [7]
Service providers should not be held primarily responsible when
modifications by a manufacturer are the sole means of resolving an
accessibility issue. The service provider’s responsibility in such cases
should be limited to making available the services that use the modified
equipment, if readily achievable.

Moreover, USTA agrees with the conclusions of paragraph 65 of the Notice
regarding section 251( a)( 2) of the Act, as applied to incumbent LECs.
Section 251( a)( 2) does not make incumbent LECs guarantors of other service
providers’ decisions on how to assemble service from network capabilities
that incumbent LECs provide to them. [8] Nor does section 25 1 (a)( 2) impose
requirements on incumbent LECs regarding the accessibility characteristics
of underlying network components. [9]

III. THE PLAIN LANGUAGE OF SECTION 255 LIMITS ITS APPLICABILITY TO
TELECOMMUNICATIONS SERVICES

By its terms, section 255 applies only to manufacturers and providers of
telecommunications services, not to providers of information services like
e- mail and voice mail. The Notice requests comment on the scope of section
255’s coverage of services, notes that some “important and widely used”
information services apparently fall outside the scope of section 255, and
asks whether Congress intended section 255 to apply to a broader range of
services than telecommunications services. According to section 255: [10??]

TELECOMMUNICATIONS SERVICES. -- A provider of telecommunications service
shall ensure that the service is accessible to and usable by individuals
with disabilities, if readily achievable.

COMPATIBILITY. -- Whenever the requirements of subsections (b) and (c) are
not readily achievable, such a manufacturer or provider shall ensure that
the equipment or service is compatible with existing peripheral devices or
specialized customer premises equipment commonly used by individuals with
disabilities to achieve access, if readily achievab1e. [11]

The provision of information services therefore is not subject to section
255. Because information services, like telecommunications services, are
defined terms in the Act, [12] the fact that section 255 mentions only
telecommunications services is a clear indication that section 255 does not
apply to information services. If Congress had intended information services
to be within the scope of section 255, it would have expressly mentioned
them in that section, as it did in other sections of the Act, such as
sections 272 and 274.2 [13] The plain meaning of section 255 does not apply to
providers of information services. Despite the limitations of section 255,
however, many incumbent LECs have gone far beyond the limited scope of
section 255 in providing to customers with disabilities a wide variety of
advanced services, many of which would be considered information services
under the Act.

In a closely related context, the Commission correctly acknowledges section
255’s narrow applicability to telecommunications service. The Notice rightly
proposes to subject providers of telecommunications service to the
requirements of sections 255( c) and (d) only to the extent that they
provide telecommunications services. [14] In doing so, the Commission notes
that the plain language of section 255( d) refers only to telecommunications
service. [15] USTA supports this proposal, and believes that the Commission
can implement it successfully even in those cases where a provider is using
the same facilities to provide both telecommunications services and services
not covered by section 255. The Act’s definitions are clear enough to permit
the Commission to distinguish readily among services in applying section 255.

The issue of the scope of section 255 is, of course, separate from whether
some information services may be useful in improving accessibility for
customers with disabilities. USTA members will continue to make efforts,
even when not mandated by section 255, to provide useful services to
individuals with disabilities.

IV. THE DEFINITION OF “READILY ACHIEVABLE” MUST BE REALISTIC The
Commission’s analysis of what is “readily achievable” in the context of
section 255 must reflect the realities faced by incumbent LECs as well as
other providers of telecommunications services. As the Notice states,
section 255 incorporates by reference the definition of “readily achievable”
in the Americans With Disabilities Act (“ ADA”). [16] USTA agrees with the
Commission’s tentative conclusion, which it shares with the Access Board
guidelines, that “readily achievable” in the telecommunications context
simply means “easily accomplishable and able to be carried out without much
difficulty or expense. [17] The use of the “readily achievable” standard in
section 255 reflects Congress’ intent to impose minimal burdens on service
providers or manufacturers in implementing section 255. As the legislative
history of the ADA states:

“Readily achievable” . . . focuses on the business operator and addresses
the degree of ease [or] difficulty of the business operator in removing a
barrier; if barrier- removal cannot be accomplished readily, then it is not
required. [18]

USTA also agrees that the detailed factors of the ADA’s “readily achievable”
definition primarily apply to “built environments” -- that is, to the
removal of architectural barriers in buildings and facilities. As the
Commission notes, there are major differences between the details of
accessibility to built environments, as contemplated by the ADA, and
accessibility to telecommunications services and equipment, as contemplated
by section 255.[20] Because of the complexity of the telecommunications
industry, implementation of section 255 by service providers, manufacturers,
and the Commission will prove just as complex.

Accordingly, the substantive standards that the Commission uses to determine
whether an access solution is “readily achievable” should be based on the
unique characteristics of the telecommunications industry. In particular,
the Commission’s analysis with respect to incumbent LECs must take into
account the fact that LECs are already subject to comprehensive state and
federal regulation. As the Commission implements and applies section 255 for
service providers, it should be mindful of the constraints imposed by other
Commission or state regulations on incumbent LECs.

USTA briefly discusses below the factors that the Commission proposes for
determining what is readily achievable. In considering these factors, the
Commission must not lose sight of the forest for the trees. To repeat the
crucial portions of the definition, accessibility solutions must be “easily
accomplished. ” As importantly, they must be “able to be carried out without
much difficulty or expense. ”

Feasibility. USTA agrees with the Commission that there are a variety of
reasons why a particular feature may not be feasible, including the
inability of available technology to provide accessibility features, the
negative effects that accessibility solutions for one disability may have on
solutions for another disability, and legal impediments to implementing some
features. [21] Because of the complex legal and regulatory environment in
which incumbent LECs operate, existing regulations, such as mandated
modernization or infrastructure plans, may well prevent some accessibility
solutions from being easily accomplished at a given time. This reinforces
the Notice’s conclusion that “despite advances in technology, some features
are still not possible. [22]

Expense. By designing products to be as broadly accessible as possible to
users, including people with disabilities, manufacturers and service
providers can reduce expense while providing for accessibility. However, it
is essential that the Commission avoid requiring incumbent LECs to implement
accessibility features for which they cannot recover the costs. While
incumbent LECs should retain the ability to make specific arrangements for
services provided to persons with disabilities, the Commission should not
create broad mandates for LECs to provide services for which explicit cost
recovery does not occur. As the Notice states, “[ t] he more a provider can
recover the cost of providing an accessibility feature, the more likely the
feature can be provided ‘without much . . . expense. [23] This is
particularly so for incumbent LECs, which operate under state and federal
regulatory systems that often place LECs in the position of providing
services which do not explicitly allow for recovery of their costs.

However, nowhere in section 255 or the ADA is there support for the Notice’s
assertion that the “assumption of some cost burden is an explicit element of
the definition of ‘readily achievable. [24] According to the ADA definition,
an accessibility feature is readily achievable if it can be provided without
much expense. The definition does not state that costs of the feature need
not be recovered, and the Commission should not adopt such a rule.

When considering expense, USTA agrees that the Commission should include the
cost of other resources and opportunity costs. [25] However, claims cited in
the Notice that the cost of accessible technology drops when required by
regulation are incorrect in the case of incumbent LECs. [26] Although
mandatory standards hypothetically could result in scale economies in the
provision of accessibility features, the Commission has proposed no such
standards. More importantly, incumbent LECs’ services are subject to a wide
variety of state and federal regulation such that any “savings” at all, to
consumers or LECs, from standardization are highly improbable.

Practicality. When assessing the practicality of accessibility features, the
Commission must recognize that existing state and federal regulation of
incumbent LECs can limit the types of potential investments by LECs and the
technologies available in their networks by requiring, for example,
modernization or infrastructure development plans that affect network
investment for years. Regulation thus may limit the practicality of
incumbent LECs making some types of advanced services available to
customers, including some customers with disabilities [27]

The Commission should not adopt the presumptions presented in the Notice
regarding the business entities whose resources are deemed available to
achieve accessibility consistent with section 255. [28] Although the goal of
these presumptions apparently is to prevent firms from “evading” section
255, the presumptions would not achieve this goal. Determining whether
resources are available for any given accessibility feature is a factual
issue that, at most, is only one of many that is relevant to whether a
proposed feature is “easily accomplished. Rather than focusing on the
business entity whose resources are to be considered available to achieve
accessibility, the Commission should simply acknowledge the fact- based
nature of this inquiry.

The resource issue is particularly complex for incumbent LECs. Incumbent
LECs vary tremendously in size, business organization, and financial
condition. The pervasive regulation imposed on incumbent LECs limits their
available resources as well. As a practical matter, incumbent LECs’ networks
are technologically limited, in part because of regulation. As noted above,
incumbent LECs often have modernization or infrastructure development plans
in place that are subject to state regulatory oversight. These plans already
govern the availability of capital for network development. The Commission
should give these plans substantial weight when considering the practical
aspects of accessibility issues.

The Commission’s “practicality” analysis also should include the effect of
accessibility features on the marketability and affordability of products
and services. [29] Although the Notice states that such features frequently
may make a product more desirable to mass markets, [30] the Commission should
not presume that such effects will occur. To do so would distort the
operation of the marketplace by substituting the Commission’s judgment
regarding the marketability of particular features for the judgment of
service providers, like incumbent LECs, that will bear the market risks of
offering such products.

V. IMPLEMENTATION REGULATIONS SHOULD FOCUS ON FLEXIBLE PROBLEM SOLVING. NOT
AN ADVERSARIAL PROCESS

A. Commission Regulations Should Promote Accessibility Solutions USTA agrees
that the Commission should adopt a minimal set of procedural rules and
guidelines to assist compliance with section 255. Because it is inevitable
that case- by- case decision- making will occur as novel situations arise,
some Commission rules are necessary to guide consumers and the industry on
problem solving and compliance. This is especially important because, as the
Commission notes, section 255 does not allow for private civil litigation.
[31] However, incentives for cooperative problem solving, rather than
adversarial procedures, should be the goal of any Commission rules. If the
Commission’s rules create adversarial relationships, there could be
incentives to design to the minimum requirements necessary to ensure
technical compliance with section 255 without considering the broader needs
of consumers with disabilities. This would not promote the innovative
solutions that will optimize telecommunications access for all [32]

Despite the need for procedural rules, the Commission should make every
effort to ensure that resolving accessibility issues takes place in the
least burdensome and most costeffective manner possible for consumers,
service providers, and manufacturers. In most cases, this will be through
direct contact among consumers, service providers, and manufacturers,
without Commission involvement. Accordingly, the Commission should not
implement any process that has the effect of discouraging customers from
first bringing their concerns to their service provider or manufacturer
before triggering Commission procedures.

USTA therefore agrees with the Commission’s proposal to refer all consumer
complaints initially to the manufacturer or service provider. [33] In initial
customer contacts concerning section 255 issues, the Commission should
encourage customers to seek resolution of these issues through their
manufacturer’s or service provider’s complaint resolution process.

USTA also agrees that the Commission should be accessible to consumers with
disabilities through various modes of communication such as TTY, letter,
electronic mail, Internet, audio cassette, or voice call. [34] Calls to the
Commission should be handled by trained Commission staff capable of working
with customers with disabilities. [35]

At the same time, USTA requests the Commission to keep an open door for
service providers or manufacturers to discuss or seek guidance on planned
actions, processes and programs before they become points of contention.
This could include Commission feedback, when requested, on the outreach,
training and company- sponsored dispute resolution processes of service
providers and manufacturers, and education of the public by the Commission
on accessibility issues. [36]

B. Only Customers Or Their Representatives Should Have Standing To File
Section 255 Complaints

Only customers of a service provider or manufacturer, either directly or
through an authorized representative, should have standing to initiate a
fast- track inquiry or an informal or formal complaint under section 255.
Although section 255 does not impose a standing requirement, [37] it clearly
does not foreclose the Commission from adopting one. Indeed, section 255
provides broadly that the Commission has exclusive jurisdiction with respect
to any complaint under that section, [38] and gives the Commission substantial
discretion to fashion its procedural rules.

A standing requirement that permits only customers of a service provider or
manufacturer, or the customers’ representatives, to file complaints under
section 255 would promote the Commission’s stated principles of (i)
responsiveness to consumers. and (ii) efficient allocation of resources. -
[39] Because customers -- consumers -- of telecommunications products are
precisely those parties that section 255 is designed to assist, USTA’s
proposed standing requirement is entirely consistent with the Commission’s
responsiveness principle.

USTA’s proposed rule would improve the Commission’s responsiveness to
consumers by focusing on the concerns of those who most directly rely on the
products of manufacturers and service providers. Similarly, the proposed
standing rule would enhance the efficient allocation of the parties’
resources. Although the Notice states a desire to avoid burdening the
complaint process with disputes about standing, [40] USTA’s proposed rule
would be simple to enforce, thus effectively lessening burdens on the
resources of the Commission and private parties without restricting
customers’ rights.

C. The Proposed Fast- Track Process Would Hinder The Constructive Resolution
Of Accessibility Issues

USTA has grave concerns about the practicality of the fast- track process
proposed in the Notice. Most importantly, five business days is an
inadequate amount of time for incumbent LECs to receive, investigate, and
respond to the Commission regarding a fasttrack inquiry. As presented in the
Notice, the Commission’s emphasis on the initial fivebusiness- day period
for a response will create false expectations among consumers that the
important issues they raise can be resolved in that short period.

USTA’s members are wholeheartedly committed to resolving accessibility
issues as quickly as possible. Rapid resolution of these issues will enable
incumbent LECs to provide high- quality telecommunications service to their
customers with disabilities, to the benefit of all. But for many such
issues, substantially more than five business days are necessary to
determine which of the involved service providers or manufacturers might
need to effect changes to their products to meet the consumers’ needs and to
determine whether such changes are readily achievable. Once possible
solutions are identified as readily achievable, additional time is generally
needed to test and implement them.

The false expectations raised by the proposed fast- track process will be
unconstructive and ultimately wasteful. Fifteen days is a minimal reasonable
time for a response, and USTA recommends that the Commission adopt an option
to extend the response period to thirty days, if necessary. Even with such a
schedule, it is very likely that additional time will be needed for complete
resolution of an accessibility issue. The Commission should make these
realities clear to consumers involved in a fast- track inquiry.

For a fast- track inquiry to succeed, the Commission must pass sufficient
information to the service provider or manufacturer to conduct an effective
investigation. In this regard, the incumbent LECs’ contact points for the
Commission should be the agents for receipt of service that the Commission
required the LECs to designate in March 1998 in revising the formal
complaint pr0cess. [41] It would be confusing and redundant for the
Commission to require LECs to provide additional contact points. The
Commission should also specify the manner in which a service provider or
manufacturer should communicate a response to a customer, especially if the
Commission has determined that one form of communication is preferable to
another.

D. Procedures For Informal And Formal Complaints Should Address The
Complexity Of Section 255 Issues

To minimize confusion and increase efficiency, Commission rules for formal
and informal complaints under section 255 that involve LECs should not
deviate from those already in place for common carriers except when
essential to address the unique issues posed by section 255. [42] For this
reason, and because of the complexity of section 255 issues, USTA supports
the proposed increases in time for respondents to answer informal complaints
and for replies to answers. [43]

E. The Commission Should Exercise Care In Using And Releasing Data Collected
In Section 255 Proceedings

The Commission should exercise great care when it uses information from
section 255 processes to formulate policies, identify problems, assign
responsibility and fashion remedies. 9’ The privacy of people with
disabilities must be respected, and firms’ proprietary information must be
protected. The Commission must test and validate any data on which it relies
for those purposes. Any data collection should include the tracking of
positive solutions, problem- solving processes, and examples of
accessibility. To the extent that the Commission compiles and releases data
regarding section 255 issues, service providers and manufacturers should
have the opportunity to first review the types of data to be published and
the format to be used. They also should have a reasonable opportunity to
correct, clarify or supplement such data.

Because of the widely varying factual circumstances involved in section 255
issues, the Commission should not compare, or “benchmark,” service providers
or manufacturers regarding such issues. [45] The Commission must be
sensitive to the impacts to competitive companies that find themselves
benchmarked against their competitors on the basis of erroneous data,
incomplete data or data presented out of context.

VI. CONCLUSION

USTA and its members look forward to working with customers with
disabilities and the Commission to implement section 255 and to ensure more
broadly that people with disabilities have access to services that permit
them to communicate freely and effectively. USTA supports the policy goals
of this rulemaking. Accordingly, USTA urges the Commission to create
processes that promote cooperative, rather than adversarial, relationships
among service providers, manufacturers, and telecommunications customers who
have disabilities.

Respectfully submitted,
UNITED STATES TELEPHONE ASSOCIATION

By: William F. Maher, Jr.
Halprin, Temple, Goodman & Sugrue
1100 New York Avenue, N. W.
Washington, D. C. 20005
(202) 371- 9100

Of Counsel
Lawrence E. Sarjeant
Linda Kent
Keith Townsend
U. S. Telephone Association
1401 H Street, N. W. Suite 600
Washington, D . C 20005
(202) 326- 7249

June 30, 1998

Endnotes

1 See Notice of Proposed Rulemaking, FCC 98- 55 (rel. Apr. 20, 1998).

2 See H. R. Conf. Rep. No. 104- 458 at 134- 135 (1996). 2

3 See Notice 7 30 (noting that the guidelines of the Architectural and
Transportation Barriers Compliance Board (“ Access Board”) address only the
accessibility of equipment).

4 See Notice q 66.

5 See id. Q 79.

6 Similarly, an incumbent LEC should not be required to provide or replace a
customer’s CPE documentation when the LEC currently does not provide such
documentation.

7 See Notice 111 76, 80. S’ Because section 255 applies to “manufacturers
of telecommunications equipment or customer premises equipment, ” as well as
service providers, the Commission has authority to so require.

8 See Notice 1 65.

9 Id.

10 See id. 1[ 42.

11 ??

12 47 U. S. C. $9 255( c), (d).

13 See 47 U. S. C. 0 153( 20) (defining “information service”), 153( 46)
(defining “telecommunications service”).

14 See, e. g., 47 U. S. C. $0 272( a)( 2)( C), (f)( 2), 6 274( h)( 2)( C).

15 See Notice 7 46. E/ Id.

16 42 U. S. C. 6 12181( 9) (emphasis added). B/ See Notice fl 97.

17 H. R. Rep. No. 101- 485, pt. 2, at 239 (1990).

18 See id. flj 98- 99. 8

19 ??

20 ??

21 See id. 4 101. 

22 See id. 1 102.

23 See Notice at n. 203.

24 See id. fl 115.

25 See id. 1 104.

26 See id. 7 103.

27 See id. fy 109- 110.

28 See id. 11 107- 109.

29 See, e. g., id. 7 111.

30 See id. Q 113.

31 See Notice 1 34.

32 The Notice’s emphasis on such adversarial procedural devices as penalties
and defenses reinforces these concerns. See id. 111 164- 166, 172.

33 See id. 11 128, 132.

34 See id. fl 129.

35 See id. 1[ 131.

36 See id. 1[ 165.

37 See id. 7 148.

38 See 47 U. S. C. $ 255( f).

39 See Notice q 124.

40 See id. 7 148.

41 See id. 71 132- 134; see also Implementation of the Telecommunications
Act of 1996, Amendment of Rules to Be Followed When Formal Complaints Are
Filed Against Common Carriers, CC Docket No. 96- 238, Report and Order, FCC
97- 396 (rel. Nov. 25, 1997)

42 See id. 1 147.

43 See id. 71 150, 151.

44 See id. 1 174.

45 See id. For example, these results should not be placed in a format such
as that of the Common Carrier Scorecard, whose data and presentation have
been disputed on several occasions.